Civil Code of the Republic of Kazakhstan
Unofficial translation Enforced by the Decree of the Supreme Council of the Republic of Kazakhstan dated December 27, 1994.
U n o f f i c i a l t r a n s l a t i o n The numbers "I-III" after the word "Section" in the text are replaced respectively by
numbers "1-3" in accordance with the Law of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005).
GENERAL PART Section I. General Provisions Chapter 1. Regulation of Civil Law Relations
Article 1. Relations Regulated by Civil Legislation
1. The civil legislation shall regulate goods and monetary relations and other property relations based on the premise of equality of the participants, as well as personal non-property relations linked to property relations. The participants of the relations regulated by the civil legislation are the citizens, legal entities, state and administrative and territorial units.
2. Personal non-property relations not linked to property relations shall be regulated by civil legislation, unless they are otherwise provided for by legislative acts or ensue from the essence of a personal property relation.
3. 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 legislation concerning family, labor, use of the natural resources and protection of the environment.
4. 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 provided for by legislative acts.
Article 2. The Basic Principles of Civil Legislation
1. Civil legislation shall be based on the principles of the equality of the all parties before the law, the inviolability of property rights, freedom of agreement, prohibition of arbitrary
interference of in personal affairs, necessity of free exercise of civil rights, provision for the restitution of 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, as well as refuse from their will and in their interest, unless otherwise stipulated by legislative acts. They shall be free on establishing their rights and obligations on the basis of agreements and on specifying any their conditions, which do not contradict legislation.
3. The movement of goods, services and money shall be unrestricted in the entire territory of the Republic of Kazakhstan. However, legislation will be introduced to restrict the circulation of goods and services when it is necessary to protect human safety, the environment and valuable cultural assets.
Footnote. Article 2 as amended by the Laws of the Republic of Kazakhstan dated 11.07.1997 No. 154; dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 3. Civil Legislation of the Republic of Kazakhstan
1. The civil legislation of the Republic of Kazakhstan shall be based on the Constitution of the Republic of Kazakhstan and consist of this Code, other laws of the Republic of Kazakhstan adopted in accordance with it, the decrees of the President of the Republic of Kazakhstan having the force of laws, edicts of the Parliament, and edicts of the Senate and Mazhilis (legislative acts), as well as decrees of the President of the Republic of Kazakhstan, decrees of the Government of the Republic of Kazakhstan regulating conduct indicated in paragraphs 1 and 2 of Article 1 of this Code.
2. In case of a contradiction between the provisions of civil law which are contained in the acts of legislation of the Republic of Kazakhstan, except for those indicated in paragraph 3 of Article 1 of this Code, and the provisions of this Code, then the provisions of this Code shall be applied. The provisions of civil law contained in legislation of the Republic of Kazakhstan and contradicting the provisions of this Code may be applied only after the introduction of the appropriate amendments into this Code.
3. relations related to the establishment, reorganization, bankruptcy and liquidation of banks and bakeries, control over banking activities and its audit, control over the activities of bakeries, licensing of certain types of banking operations, restructuring of banks, the consequences of the withdrawal of licenses of banks, the implementation of operations with the warehouse certificates of bakeries, are regulated by this Code in part, not contradicting the legislative acts governing the bank bakery operations.
Relations between banks and their clients, as well as relations between clients through banks, shall be regulated by civil legislation in accordance with the procedure established in paragraph 2 of this Article.
4. Civil relations may be regulated by tradition, including the tradition of business operation, unless it is in contradiction with the civil legislation effective in the territory of the Republic of Kazakhstan.
5. Ministries and other central executive bodies, local representative and executive bodies, may issue acts which regulate civil relations, in the cases and within the limits provided for by this Code, and by other acts of civil legislation.
6. The rights of the citizens and legal entities which are established by this Code and any other legislative acts of the Republic of Kazakhstan may not be restricted by the acts of the bodies of the state administration and local representative and executive bodies. Such acts shall be invalid from the moment of their adoption and must not be applicable.
7. Foreign individuals 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 provided for by civil legislation for the citizens and legal entities of the Republic of Kazakhstan, unless otherwise stipulated by the legislative acts.
8. If an international treaty ratified by the Republic of Kazakhstan establishes different rules than those contained in the civil legislation of the Republic of Kazakhstan, the rules of the indicated treaty shall be applied. The international treaties ratified by the Republic of Kazakhstan shall be applied to civil relations directly, except for the cases where it ensues from a treaty that its application requires the issuing of a domestic Law.
Footnote. Article 3 as amended by the Decree of the President of the Republic of Kazakhstan having the force of Law dated 31.08.95 No. 2447; by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 15.01.2001 No 141; dated 29.04.2009 No. 154- IV (the order of enforcement see Art. 2); dated 11.07.2009 No. 185 (shall be enforced from 30.08.2009); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 02.07.2018 № 168-VI (shall be enforced upon the expiration of ten calendar days from the date of its first official publication).
Article 4. The Effect of Civil Legislation in Time
1. Civil legislation acts shall not have retroactive force and shall apply to disputes which arise after their entering into force. The legal force of a civil legislation act shall apply to relations which arose prior to its enactment in the cases where it is directly provided for by it.
2. According to the conditions which arose prior to the entering of a civil legislation act into force, it shall be applied to the rights and obligations which arise after its entering into force. Relations of parties to an agreement concluded prior to the enactment of civil legislation act which 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 provided for by the paragraphs 1 and 2 of Article 1 of this Code are not regulated directly by legislation or an agreement of the parties and tradition applicable to such relations does not exist, those provisions of civil legislation shall apply, which regulate similar relations (analogy of a statute), unless this contradicts their essence.
2. When it is impossible to use the analogies of law in the indicated cases, the rights and obligations of the parties shall be defined on the basis of the general fundamentals and the spirit of civil legislation as well as the requirements of good faith, reasonableness and fairness (analogy of law).
Article 6. Interpretation of Civil Legislation Provisions
1. Provisions of civil legislation must be interpreted literally. Where the possibility of different understanding of the words used in the text of legislative provisions exists, preference shall be given to that understanding which is consistent with the provisions of the Constitution of the Republic of Kazakhstan and the fundamental principles of civil legislation which are outlined in this Chapter, and first of all in Article 2.
2. When establishing the precise meaning of a provision in civil legislation, it shall be required to consider the historic conditions under which it was introduced and its interpretation in judicial practice, unless it contradicts the requirements specified in paragraph 1 of this Article.
Article 7. Grounds for arising, change and termination of civil rights and obligations" ;
Civil rights and obligations arise, change and terminate from the grounds provided for by the legislation of the Republic of Kazakhstan, as well as from actions of citizens and legal entities, which, although not provided for by it, but due to the general principles and meaning of civil legislation, generate civil rights and obligations.
In accordance with this, civil rights and obligations emerge, change and terminate: 1) from contracts and other transactions provided for by the legislation of the Republic of
Kazakhstan, as well as from transactions, although not provided for by it, but not contradicting to the legislation of the Republic of Kazakhstan;
2) from administrative acts, which, due to the legislation of the Republic of Kazakhstan, entail civil and legal consequences;
3) from a court decision establishing civil rights and obligations; 4) as a result of creation, destruction, acquisition or alienation of property on the grounds
not prohibited by legislative acts of the Republic of Kazakhstan, as well as the waiver of property rights;
5) due to creation of inventions, industrial designs, works of science, literature and art and other results of intellectual activity;
6) as a result of causing harm to another person, as well as due to unjustified acquisition or saving of property at the expense of another person (unjust enrichment);
7) due to other actions of citizens and legal entities; 8) due to the events with which the legislation of the Republic of Kazakhstan connects the
onset of civil and legal consequences. Footnote. Article 7 in the new wording of the Law of the Republic of Kazakhstan dated
27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 8. The Exercise of Civil Rights
1. Citizens and legal entities shall exercise civil rights belonging to them including the right to protection at their discretion.
2. The refusal of citizens and legal entities to exercise their rights shall not entail the cessation of those rights, except for the cases provided for by legislative acts.
3. The exercise of civil rights must not violate the rights and the interests of any other subjects under legislation, and it must not harm the environment.
4. Citizens and legal entities must act in good faith, reasonably and fairly when exercising their rights, and comply with the requirements contained in legislation and the moral principles of the society. Entrepreneurs must also comply with the rules of business ethics. This obligation may not be excluded or restricted by any agreement. The good faith, reasonableness and fairness of the acts of participants in civil rights relations shall be presumed.
5. Actions of citizens and legal entities aimed at causing harm to another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
6. No one has the right to take advantage of his/her bad faith behavior. 7. In case of non-compliance with the requirements provided for in paragraphs 3 - 6 of
this article, the court may refuse to protect the right belonging to the person. Footnote. Article 8 as amended by the Law of the Republic of Kazakhstan dated
25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 9. Protection of Civil Rights
1. Protection of civil rights is carried out by court, arbitration through: recognition of rights; restoration of the situation that existed before infringement of a right; suppression of actions that infringe a right or threaten its infringement; ordering of specific performance; recovery of damages, penalty; recognition of a disputable transaction as invalid and
application of consequences of its invalidity, application of consequences of invalidity of a void transaction; compensation for moral harm; termination or change of legal relations; recognition of an act of a government body or local representative or executive body that does not comply with the legislation of the Republic of Kazakhstan as invalid or not applicable; collection of a fine from a state body or official for obstructing a citizen or legal entity from acquiring or exercising the right, or by other means provided for by legislative acts of the Republic of Kazakhstan.
Legal entities have no right to compensation for moral harm. 2. The appeal for protection of a violated right to a body of power or administration shall
not prevent an appeal to the court with an action to protect a right, unless legislative acts specify otherwise.
3. In the cases which are specifically provided for in legislative acts, the protection of civil rights shall be carried out directly by actual or legal acts of the person whose right is violated (self-defense).
4. The person whose right is violated may require the entire restitution of the damages inflicted on him (her), unless otherwise stipulated by legislative acts or the agreement.
The concept of damages means the losses, which are incurred or must be incurred by the person whose right is violated, the loss or the damage of his property (real damage) and also lost profit which this person would have received under the normal conditions of the turnover, should his right have not been violated (lost profits).
5. The losses which are inflicted upon a citizen or a legal entity as a result of issuing by a governmental body of an act which does not comply with legislation, or by any other state body, and also by acts (failure to act) of the officials of those bodies, shall be subject to compensation by the Republic of Kazakhstan or by the relevant administrative and territorial unit.
6. If the emergence of the legal consequences of a violation is related to the guilt of the violator his guilt shall be presumed, except for the cases where legislative acts stipulate otherwise.
Footnote. Article 9 as amended by the Laws of the Republic of Kazakhstan dated 03.07.2013 № 125-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 08.04.2016 № 489-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 10. Protection of the Rights of Entrepreneurs and Consumers
1. Entrepreneurship is an independent, initiative activity of citizens, oralmans and legal entities aimed at obtaining a net income through the use of property, production, sale of goods , performance of work, provision of services, based on the right of private property (private
business) or on the basis of the right of economic management or operational management of a state-owned enterprise (state entrepreneurship). Entrepreneurial activity is carried out on behalf of, for the risk and under the property responsibility of an entrepreneur.
2. The state shall guarantee, protect and support the freedom of entrepreneurial activities. 3. The rights of entrepreneurs who carry out activities which are not prohibited by
legislation shall be protected as follows: 1) possibility of carrying out entrepreneurial activity without obtaining any permits or
sending notifications, except for permits and notifications stipulated by the Law of the Republic of Kazakhstan "On permissions and notifications";
2) by a simplified procedure for the registration of any of entrepreneurship in all economic sectors by one registering authority;
3) by restricting, through legislative acts, those audits which are carried out by the state bodies;
4) by a compulsory termination of entrepreneurial activities based only upon the decision of the court, which is passed on the grounds established by legislative acts;
5) by establishing through legislative acts of the lists of operations ands of goods and services which are prohibited for private entrepreneurship, or restricted for export and import;
6) by holding the state bodies, officials and any other persons and organizations responsible for loss to the entrepreneurs and for illegal impediments to their activities;
6-1) by prohibiting to executive, supervisory and monitoring bodies, to enter into contractual relations with entrepreneurial entities for the matter of performing the obligations which are the function of those bodies;
7) by any other means provided for by legislation. 4. Permission or notification procedure is established by the Law of the Republic of
Kazakhstan "On permissions and notifications" depending on the level of danger of the activity or action (operation) in order to protect the life and health of people, environment, property, national security law and order.
Permission procedure is established in cases when the requirements for products, the requirements for mandatory confirmation of compliance, stipulated by the laws of the Republic of Kazakhstan, are insufficient to achieve the objectives of state regulation.
5. A commercial (entrepreneurial) secret shall be protected by law. The procedure for identifying the information which constitutes a commercial secret, the methods of its protection and also the list of information which must not be included among commercial secrets shall be established by legislation.
6. The protection of the rights of consumers shall be ensured by the means provided by this Code and any other legislative acts.
In particular, each consumer shall have the right: - to freely enter agreements to purchase goods and to employ work and services; - to proper quality and safety of goods (work, services);
- to full and reliable information on goods (work, services); - and the right to join public associations of consumers. Footnote. Article 10 as amended by the Decree of the President of the Republic of
Kazakhstan having the force of Law dated 27.01.1996 No. 2835, by the Laws of the Republic of Kazakhstan dated July 11, 1997 No. 154, dated July 10, 1998 No. 283, dated January 12, 2007 No. 222 (shall be enforced upon expiry of six months from the date of its publication), dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 16.05.2014 № 203-V (shall be enforced upon expiry of six months after the day its first official publication); dated 29.10.2015 № 376-V (shall be enforced from 01.01.2016).
Article 11. Prohibition of Abusing the Freedom of Entrepreneurship
1. Monopolistic activities and any other activities aimed to restrict or eliminate legal competition or the extraction of unreasonable advantages by the restriction of rights and legitimate interests of consumers, shall not be allowed.
2. Except for the cases provided for by legislative acts, the use by entrepreneurs of civil rights for the purpose of restricting competition shall not be allowed, in particular:
1) the abuse by entrepreneurs of their dominant position in the market to restrict or terminate the production or reserve from commodity circulation in order to create shortages or increase the prices;
2) making and implementing by persons who carry out similar entrepreneurial activities of agreements concerning prices, subdivision of markets, elimination of any other entrepreneurs or any other conditions which materially restrict competition ;
3) commission of unfair acts which are aimed at restriction of the legitimate interests of a person who performs similar entrepreneurial activities and of consumers (unfair competition), in particular, the misleading of consumers with regard to the manufacturer, designation, method and place of manufacture, quality or any other properties of goods of other entrepreneurs, by way of unfair comparison of goods in advertising and in any other information, copying external design of somebody else's goods and by any other methods.
Measures aimed to control unfair competition shall be established by legislative acts.
Chapter 2. The subjects of the Civil Rights Paragraph 1. Citizens of the Republic of Kazakhstan and Other Individuals
Article 12. The Definition of an Individual
Citizens of the Republic of Kazakhstan, citizens of other states, as well as stateless persons shall be understood to be individual persons. The provisions of this chapter shall apply to any individual persons, unless they are otherwise established by this Code.
Article 13. The Legal Capacity of Citizens
1. The capacity to have civil rights and bear obligations (civil rights capacity) shall be recognized as equal to all citizens.
2. The legal capacity of a citizen shall arise at the moment of his birth and it shall cease with his death.
Article 14. The principal Contents of the Legal Capacity of a Citizen
A citizen, on the basis of the right to ownership,may have property, including foreign currency, both within the Republic of Kazakhstan and beyond its borders; inherit and bequeath property; freely move around the territory of the republic and choose a place of residence; freely leave the borders of the republic and return to its territory; engage in any activities not prohibited by legislative acts; to establish legal entities independently or with other citizens and legal entities; carry out any transactions not prohibited by legislative acts and participate in obligations; have the right of intellectual property for inventions, works of science, literature and art, other results of intellectual activity; demand compensation for material and moral harm; have other property and personal non-property rights.
Footnote. Article 14 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 15. The name of a Citizen
1. A citizen shall acquire and exercise the rights and obligations under his (her) name including the surname and the proper name and at his (her) discretion - the patronymic name.
2. Legislation may provide for cases of anonymous acquisition of the rights and execution of obligations, or the use of a pen name (fictitious name) by citizens.
3. The name which is received by a citizen at his birth and also the change of the name shall be subject to registration in accordance with the procedure established by legislation concerning the registration of civil status acts.
4. A citizen shall have the right to change his name in accordance with the procedure established by legislative acts. The change of name 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 pseudonym.
5. A citizen shall be obliged to take appropriate steps to notify his debtors and creditors of a change of his name and he shall bear the risk associated with the consequences which are caused by those persons' unawareness of the change of his name.
6. A citizen who has changed his (her) name shall have the right to require the introduction of the appropriate amendments into the documents formulated for his (her) former name.
7. The acquisition of rights and obligations under the name of a different person shall not be allowed.
8. A citizen has the right to demand prohibition of the use of his name, when this was done without his consent, except for the cases stipulated by the laws of the Republic of Kazakhstan.
9. The harm caused to a citizen as a result of the illicit use of his (her) name shall be subject to compensation in accordance with the provisions of this Code. In the case of a distortion or use of a citizen's name by ways or in a manner which affect his (her) honor, dignity or business reputation, the rules provided by Article 143 of this Code shall be applied.
With distortion or use of a citizen or as a way that affects their honor, dignity and business reputation, the rules provided in Article 143 of this Code shall be applied.
Footnote. Article 15 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the day of its official publication); dated 21.05.2013 № 95-V (shall be enforced upon expiry of six months after its first official publication).
Article 16. The Place of Residence and Legal Address of a Citizen
1. The populated area where a citizen permanently or predominantly resides shall be recognized as the place of domicile of the citizen.
2. The place of residence of the parents, adopters or guardians of persons who have not reached 14 years of age or citizens who are under guardianship, shall be recognized as their place of domicile.
3. A citizen has a legal address used in relations with individuals and legal entities, as well as the state.
Legal address of the citizen is the place of his (her) registration. The procedure of registration of citizens is defined by the Government of the Republic of
Kazakhstan. 4. A citizen has the right to demand prohibition of the use of information about his place
of residence or legal address when this was done without his consent, except for the cases stipulated by the laws of the Republic of Kazakhstan.
Footnote. Article 16 as amended by the Laws of the Republic of Kazakhstan dated 12.01.2007 No. 224 (the order of enforcement see Art. 2); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 21.05.2013 № 95-V (shall be enforced upon expiry of six months after its first official publication).
Article 17. The Legal Capacity of Citizens
1. The capacity of a citizen to acquire and exercise civil rights, create for himself (herself) civil obligations and execute them (citizen's deed capacity) shall arise in their entire volume when the citizen reaches the age of majority, that is, upon reaching eighteen years of age.
2. In the case where legislative acts allow entering into marriage prior to reaching eighteen years of age, a citizen who has not reached 18 years of age shall acquire legal capacity in its entire volume from the moment of entering into marriage.
3. All citizens shall have equal legal capacity, unless it is otherwise provided for by legislative acts.
Article 18. The Prohibition of Deprivation and Restriction of Legal Competence and Legal Capacity
1. No one may be restricted in legal capacity and legal capacity otherwise than in the cases and in order to the procedure provided for by legislative acts.
2. The non-compliance with the conditions and the procedure established by legislative acts for restricting the legal competence and the legal 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. Full or partial refusal of a citizen from legal or dispositive capacity and other transactions aimed at limiting legal or dispositive capacity are null and void, except for cases when such transactions are permitted by legislative acts.
Footnote. Article 18 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
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 provided for by this Code and other legislative acts.
2. State registration of individual entrepreneurs is their registration as an individual entrepreneur.
3. The rules of this Code which regulate activities of the legal entities which are commercial organizations shall apply accordingly to entrepreneurial activities of citizens which are performed without formation of a legal entity, unless they otherwise ensue from legislation or from the essence of the legal relations.
4. Individuals are subject to state registration as an individual entrepreneurs in accordance with the Entrepreneural Code of the Republic of Kazakhstan.
4-1. Is excluded by Law of the Republic of Kazakhstan No 122-VI dated 25.12.2017 ( shall be enforced from 01.01.2018).
5. If an individual entrepreneur carries out activities subject to licensing, he must have a license to carry out such activities.
A license is issued in the order established by the legislation of the Republic of Kazakhstan on permissions and notifications.
The Government of the Republic of Kazakhstan has the right to establish a simplified procedure for issuing licenses to individual entrepreneurs.
Footnote. Article 19 as amended by the Laws of the Republic of Kazakhstan dated 02.07.1997 No. 144; dated 24.12.2001 No. 276 (shall be enforced from January 1, 2002); dated 10.12.2008 No. 101-IV (shall be enforced from 01.01.2009); dated 30.06.2010 № 297- IV (shall be enforced from 01.01.2013); dated 26.12.2012 № 61-V (shall be enforced from 01.01.2013); dated 16.05.2014 № 203-V (shall be enforced upon expiry of six months after the day its first official publication); No 122-VI dated 25.12.2017 (shall be enforced from 01.01.2018).
Article 20. Property Liability of a Citizen
1. A citizen shall be liable for his (her) obligations with all the property he (she) has, except for the property upon which in accordance with legislative acts claims may not be imposed.
2. Is excluded by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI ( shall be enforced upon expiry of ten calendar days after the day its first official publication).
Footnote. Article 20 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 21. Bankruptcy of an individual entrepreneur
1. Insolvency of an individual entrepreneur (Article 52 of this Code) is the basis for declaring him bankrupt.
2. Bankruptcy of an individual entrepreneur is recognized in voluntary or compulsory order according to the rules set up by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy. Since the recognition of an individual entrepreneur as a bankrupt, his registration as an individual entrepreneur is no longer valid.
3. When applying the bankruptcy procedures to an individual entrepreneur, his creditors for obligations not related to entrepreneurial activity are also entitled to submit their claims if the due date for such obligations has come. The claims of these creditors, not submitted by them in this order, as well as claims that were not fully satisfied from the insolvency estate, remain in force and can be brought to collection to the debtor as an individual after the
bankruptcy proceedings are completed. The amount of these claims shall be reduced by the amount of satisfaction received in the bankruptcy process of the debtor.
Footnote. Article 21 in the new wording of the Law of the Republic of Kazakhstan dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 22. Legal Capacity of Minors at the Ages from Fourteen to Eighteen
1. Minors at the age from fourteen to eighteen shall enter into transactions with the consent of their legal representatives. The form of such consent must be consistent with the form which is established by legislation for transactions entered into by minors.
2. Minors from fourteen to eighteen years old shall have the right to independently dispose of their wages, grants and any other income and the intellectual property rights associated with the paragraphs created by them, and also to enter into small day-to-day transactions.
3. If there are sufficient grounds, the court may limit or deprive the minor of the right to independently use his earnings, scholarships, other incomes and the objects of intellectual property rights created by him.
4. Minors at the age from fourteen to eighteen shall independently bear responsibility with regard to the transactions committed by them in accordance with the rules of this Article and they shall be held responsible for any harm caused by their acts, in accordance with the rules of this Code.
Footnote. Article 22 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 31.10.2015 № 378-V (shall be enforced from 01.01.2016).
Article 22-1. Announcement of a Minor’s Full Legal Capacity (Emancipation)
1. A minor who has reached the age of 16 may be declared emancipated if he (she) works under an employment contract or with the consent of his (her) legal representatives is engaged in entrepreneurial activities.
2. The Declaration of a minor's full legal capacity (emancipation) shall be carried out by decision of the tutelage and guardianship authorities with the consent of their legal representatives or in the absence of such agreement, by a court decision.
3. An emancipated minor shall have civil rights and obligations (including for obligations which have arisen as a result of harm inflicted by him/her), except those rights and obligations for the acquisition of which by the legislative acts of the Republic of Kazakhstan is the age limit.
Legal representatives are not liable for the obligations of an emancipated minor.
Footnote. The Code is supplemented by Article 22-1 in accordance with the Law of the Republic of Kazakhstan dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 23. The Legal Capacity of Minors Under Fourteen (Children)
Footnote. The title of Article 23 as amended by the Law of the Republic of Kazakhstan dated 25.03.2001 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
1. For minors (children) who have not reached 14 years of age transactions shall be committed by their legal representatives on their behalf, unless otherwise provided for by legislative acts.
2. Minors (children) under the age of fourteen years shall have the right to independently enter only into small day-to-day transactions which are performed at the moment of their instigation.
Footnote. The Article 23 as amended by the Law of the Republic of Kazakhstan dated 25.03.2001 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 24. The Consent of the Bodies of Guardianship and Sponsorship to Commitment of Transactions by Minors and on Behalf of Minors
Legislative acts may establish cases where the commitment of a transaction by a minor and on behalf of a minor shall require prior consent of the guardianship or sponsorship authorities.
Article 25. The Right of Minors to Lodge Savings into Banks and to Dispose of Savings
1. Minors shall have the right to lodge their savings in banks and to independently dispose of their savings which are lodged by themselves.
2. Savings which are lodged by somebody else on behalf of minors who have not reached fourteen years of age, shall be managed of by their parents or any other legitimate representatives, while minors who have reached fourteen years of age may independently dispose of savings lodged on their behalf by somebody else.
Footnote. Article 25 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 26. The Recognition of a Citizen as Legally Incapable
1. A citizen who, as a result of psychiatric disease or mental disability, cannot understand the meaning of his (her) acts or direct them, may be recognized by the court as incapable, and in this connection, guardianship shall be established over him (her).
2. On behalf of citizens recognized as incapable, the transactions shall be carried out by his (her) guardian.
3. In the case of a recovery or a significant improvement of the health of the incapable person, the court shall recognize him (her) as capable, after which guardianship shall be alleviated over him (her).
Article 27. Restriction of Citizen’s Legal Capacity
1. A citizen who consequential to the abuse of alcoholic drinks or narcotic substances puts his (her) family into a difficult financial position may be restricted by the court with regard to his legal capacity in accordance with the procedure established by the Civil Procedural Code of the Republic of Kaza khstan. Guardianship shall be established over him (her). He (she) shall have the right to independently enter into small day-today transactions. He (she) may commit any other transactions, receive wages, pensions and any other income, and he (she) may only dispose of them with the consent of the tutor.
2. If a citizen ceases the abuse of alcoholic drinks or narcotic substances, the court shall abolish restrictions of his (her) capacity. On the basis of the court decision the tutorship established over the citizen shall be abolished.
Article 28. The Recognition of a Citizen as Missing
1. Pursuant to the application of interested persons a citizen may be recognized by the court as missing, if within one year in the place of his (her) domicile there is no information on his (her) whereabouts.
2. When it is impossible to establish the date of receipt of the last information concerning the missing person, the beginning of the absence 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 if it is impossible to establish that month, - it shall be the first of January of the following year.
Article 29. The Protection of Property of a Missing Person
1. On the basis of a court decision, guardianship shall be established with regard to the property of a person who is recognized as missing. Subsistence shall be paid from that property to the persons whom the missing person was to support, and his debts shall be repaid with regard to taxes and any other liabilities.
2. Pursuant to the application of the interested persons, the guardianship and tutorship authority may appoint an administrator to guard and manage the property until the one year expires after the date when last information concerning the location of the missing person was received.
Article 30. The Abolition of a Decision to Recognize a Person as Missing
In the case of arrival or the establishment of the locations of a person who is recognized as missing, the court shall abolish its decision to recognize him (her) as missing and to establish guardianship over his (her) property.
Article 31. The Announcement of a Citizen as Deceased
1. Pursuant to the application of interested persons, a citizen may be announced by the court as deceased, if there is no information about him (her) in the place of his domicile for three years; and, if he disappeared under circumstances which threatened death or which give grounds to assume his death in an accident, for six months.
2. A military serviceman, or any other person who is missing in connection with military actions, may be announced deceased not earlier than upon the expiry of two years from the date of the termination of the military operations.
3. The date of the death of a person who is announced as deceased shall be deemed to be the day that the decree of the court, which announced him (her) as deceased, enters into legal force. In the cases of announcing persons as deceased, a person who is missing under circumstances which threaten death or which invoke the assumption of his death in an accident, the court may recognize the date of the assumed death of this person as the date of his death.
4. When the decision of a court announcing a person as deceased enters into legal force, his death shall be entered into the books for the registration of civil status acts. The consequences of such an entry shall be the same as of an entry of actual death.
Article 32. The Consequences of the Appearance of a Person Announces as Deceased
1. In the case that a person who has been announced as deceased, re-appears or his (her) location is established, the relevant court decision shall be annulled.
2. Irrespective of the time of his (her) re-appearance, the citizen may claim the return of remaining assets which were free of charge transferred to persons after the announcement of the citizen as deceased, from those persons.
3. If the property of a person announced as deceased, was sold by his (her) legal successor to third persons who by the time of re-appearance failed to pay the full purchase price, then the person who reappeared shall have the right to claim the outstanding amount.
4. The persons to whom the property of a citizen who was announced as deceased was transferred through commercial transactions, shall be obliged to return to him (her) that property; and in case they do not have it, they must compensate for its value, if it is proved that at the time of the acquisition of the property they knew that the citizen who was announced deceased, was alive.
5. The alienator of the assets who knew at the moment of the alienation that the person announced as deceased is alive, shall bear, jointly with the buyer, the responsibility to return or compensate the value of the property.
6. When the property of a person who is announced as deceased was transferred to the State under its right to inherit and was sold, then, after the abolition of the decision to announce the person as deceased, he (she) shall be repaid the amount which is received from selling his (her) property subject to its market value as on the date of the payment.
Paragraph 2. Legal Entities
Footnote. Parts III, IV, V should be considered as the Parts V, VI, VII by the Law of the Republic of Kazakhstan dated July 10,1998 No. 282.
I. General Provisions
Article 33. The Definition of a Legal Entity
1. An organization which pursue the recovery of income as the primary purpose of the activity (commercial organization) or doesn’t have gaining income as a goal and doesn’t distribute any net income between the parties (non-profit organization) shall be recognized as the legal entity.
2. A legal entity has a seal with its name. This requirement does not apply to legal entities that are entities of private entrepreneurship, except for the cases provided for by this Code and the laws of the Republic of Kazakhstan.
Footnote. Article 33 as amended by the Law of the Republic of Kazakhstan dated 29.12.2014 № 269-V (shall be enforced from 01.01.2015).
Article 34. Thes and Forms of Legal Entities
1. A legal entity may be an organization which pursues the extraction of profits income as the principal purpose of its activities (commercial organization), or which does not have the extraction of profits income as such a goal and which does not distribute earned profits, earned net income between its participants (non-commercial organization).
2. A legal entity which is a commercial organization (enterprise) may be created solely in the form of a state-owned enterprise, business partnership, joint-stock company or production cooperative.
3. A legal entity, which is a non-commercial organization, may be created in the form of an institution, public association, joint-stock company consumer co-operative, public foundation, religions association and any other form which is provided for by legislative acts. A non-commercial organization may engage in entrepreneurial activity only for as long as it is consistent with the objectives of its charter.
3-1. A legal entity that is a non-commercial organization and maintained at the expense of the state budget may be formed exclusively in the form of a state-owned institution.
4. Legal entities may create associations. 5. A legal entity shall act on the basis of this Code, the Law concerning each of legal
entities, any other legislative acts and their foundation documents. Footnote. Article 34 as amended by the Laws of the Republic of Kazakhstan dated
11.07.1997 No. 154; dated 02.03.1998 No. 211; dated 10.07.1998 No. 282; 16.12.1998 No. 320; dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); dated 27.04.2012 No. 15-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 35. The Legal Competence of a Legal Entity
1. A legal entity may have civil rights and bear obligations associated with its activity in accordance with this Code.
Commercial organizations, except for state-owned enterprises, may have civil rights and bear civil obligations, which are necessary for the exercise of anys of activity which are not prohibited by legislative acts or their foundation documents.
In the cases stipulated by legislative acts, an opportunity to engage in another activity may be prohibited or restricted for legal entities carrying out certains of activity.
A legal entity may engage in certains of activities, the list of which is defined by legislative acts, only on the basis of a license.
2. Legal capacity of a legal entity emerges at the time of its establishment and terminates at the time of completion of its liquidation. Legal capacity of a legal entity in the field of activity for which a permit is required emerges from the moment of obtaining such permit and terminates at the time of its withdrawal, expiration of validity or invalidation in accordance with the procedure established by legislative acts of the Republic of Kazakhstan.
3. The legal competence of a legal entity who is a non-commercial organization and maintained solely at the expense of the state budget (state institution) shall be defined by this Code and other legislative acts of the Republic of Kazakhstan.
Footnote. Article 35 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated December 16, 1998 No. 320; dated 16.05.2014 № 203-V (shall be enforced upon expiry of six months after the day its first official publication).
Article 36. The Rights of Founders (Participants) with regard to the Property of the Legal Entities Formed by Them
1. The founders (participants) of a legal entity may have obligatory or corporeal rights with regard to the separate property of the legal entity.
2. Business partnerships, joint-stock companies and co-operatives shall be recognized as legal entities which property remains under the obligatory rights of their participants ( foundation parties).
3. The organizations which hold their property under the right of economic jurisdiction or under the right of operational management shall be recognized as legal entities which properties remain under the right of ownership or under other corporeal rights of their foundation parties.
4. Public associations, public foundations and religious associations shall be recognized as legal entities which properties don’t remain under the right of ownership of their foundation parties.
5. The rights of the founders (participants) to the property of the legal entities and other legal forms that they have created, are determined by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 36 as amended by the Laws of the Republic of Kazakhstan dated 10.07.1998 No. 282, dated 12.01.2007 No. 225 (shall be enforced from the day of its official publication), dated 27.04.2012 No. 15-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 37. Bodies of a Legal Entity
1. A legal entity shall acquire civil rights and assume obligations only through its bodies which operate in accordance with legislative acts and the foundation documents.
2. Thes of the procedure for appointing or electing the bodies of a legal entity and their powers shall be defined in legislative acts and the foundation documents.
Footnote. Article 37 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 38. The name of a Legal Entity
1. A legal entity shall have its name, which permits to distinguish it from any other entities.
The name of a legal entity shall consist of its name and an indication of its organizational and legal form. It may contain any additional information provided for by legislation.
The name of a legal entity shall be indicated in its foundation documents. It shall be prohibited to use in the name of a legal entity, names which contradict the
requirements of legislation or the norms of public ethics; the proper names of persons, unless they coincide with the names of participants, or where the participants failed to obtain the permission from those persons (their heirs) to use the proper name;
2. Under a specific name, a legal entity shall be included into the National Register of Business Identification Numbers.
The name of the legal entity shouldn’t entirely or partly duplicate the name of the legal entities registered in the Republic of Kazakhstan.
The name of a legal entity which is a commercial organization, after the registration of the legal entity, shall be its business name.
A legal entity shall have an exclusive right to use its business name. A person who illicitly uses somebody else's business name must terminate the use of such a name and to compensate the losses caused, pursuant to the requirement of the owner of the right to the business name.
The rights and obligations of a legal entity which are associated with the use of a business name shall be determined in legislation.
3. (is excluded No. 276 dated 12.24.2001) 4. The use of references to official names of the state bodies of the Republic of
Kazakhstan established by legislative acts, acts of the President and Government of the Republic of Kazakhstan in the business names, service signs, trademarks of the legal entities which are not state bodies shall be prohibited.
Footnote. Article 38 as amended by the Laws of the Republic of Kazakhstan dated 15.07.1996 No. 30, dated 02.03.1998 No. 211, dated 16.07.1999 No. 440, dated 24.12.2001 No. 276 (shall be enforced from 01.01.2002), dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 39. The Location of a Legal Entity
1. The place where the permanently operating body of a legal entity is situated shall be recognized as the location of that legal entity.
2. The location of a legal entity shall be indicated in its foundation documents with the inscription of its full address.
3. In relations with third parties, a legal entity is not entitled to refer to the inconsistency of the actual address with the address entered in the National Register of Business Identification Numbers. At that, third parties are entitled to send mail and other correspondence to the legal entity both at the address entered in the National Register of Business Identification Numbers and at the actual address.
Footnote. Article 39 as amended by the Law of the Republic of Kazakhstan dated March 2 , 1998 No. 211; dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 40. The Founders of a Legal Entity
1. A legal entity may be founded by one or several founders. 2. The owners of the property or the bodies and persons authorized by them, and any
other legal entities in the cases specifically provided for by legislative acts may be founders of a legal entity. At the same time the legal entities which own the property on the basis of a right of economic jurisdiction or operational management, may be the founders of other legal entities with the consent of their owners or the bodies authorized by their owners except the cases provided for by the Laws of the Republic of Kazakhstan.
3. The founders of the legal entity cannot have any advantage over other members of the legal entity, who are not its founders, except in cases stipulated by legislative acts of the Republic of Kazakhstan.
Footnote. Article 40 as amended by Laws of the Republic of Kazakhstan dated 16.05.2003 No. 416, dated 18.02.2011 No. 408-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 41. Foundation Documents of a Legal Entity
1. Unless otherwise provided by this Code and legislative acts of the Republic of Kazakhstan, a legal entity carries out its activities on the basis of:
1) the charter and the constituent treaty; 2) the charter; 3) the charter and a written decision on establishment of a legal entity (decision of the sole
founder) if a legal entity is established by one person. In cases provided for by legislative acts of the Republic of Kazakhstan, a legal entity that
is a non-profit organization may act on the basis of a general provision on organizations of this type.
A legal entity that is a subject of small, medium and large scale business may carry out its activities on the basis of a standard charter, the content of which is determined by the Ministry of Justice of the Republic of Kazakhstan.
2. The foundation agreement of a legal entity shall be entered into and its charter shall be approved by its foundation parties. No foundation agreement shall be entered into if a commercial organization is established by one person.
3. The foundation documents of a non-commercial organization and of a state-owned enterprise, must define the objects and aims of the activities of that legal entity.Foundation documents of a business partnership, joint-stock company and a production cooperative may provide the objectives and purposes of their activity.
4. In the foundation agreement parties (founders) undertake to create a legal entity, define the procedure for their joint activities to create it, the conditions for the vesting into its ownership (business authority, operational management) of their property and for their participation in its activities. The agreement shall also define the terms and procedure for the distribution of net income between the founders, management of the business of the legal entity, cessation of founders and approve its charter, unless it is otherwise provided for by this Code or legislative acts concerning specifics of legal entities.
Any other provisions may be included into a foundation agreement by the consent of the founders.
4-1. The decision of the sole founder shall contain the provisions of transfer of ownership (economic management, operational management) the property and other solutions that do not contradict to the legislation of the Republic of Kazakhstan.
The decision of the sole founder-legal entity is taken by the authorities that have the right to make such decisions in accordance with the legislation of the Republic of Kazakhstan and the charter of the legal entity.
5. The name of a legal entity, its location, procedure for the formation and the competence of its bodies, provisions of the reorganization and termination of its activities shall be provided I n the charter.
If a legal entity is established by one person, then a procedure of the formation of the property and the distribution of profits shall also be defined in its charter.
Other provisions which do not contradict legislation may be specified in a charter. 6. In the case of contradictions between the foundation agreement and the charter of the
same legal entity, their provisions must apply as follows: 1) those of the foundation agreement, when they are associated with internal relationship
of founders; 2) those of the charter, when their application may have significance for relations of the
legal entity with third persons. 7. Any interested parties shall have the right to peruse the charter of a legal entity. Footnote. Article 41 as amended by the Laws dated 15.07.1996 No. 30; dated 19.06.1997
No. 132; dated 11.07.1997 No. 154; dated 02.03.1998 No. 211; dated 22.04.1998 No. 221, dated 10.07.1998 No. 282, dated 16.05.2003 No. 416, dated 12.01.2007 No. 225 (shall be enforced from the day of its official publication), dated 04.07.2008 N 54-IV (the order of
enforcement see Art. 2), dated 08.12.2009 No. 225 - IV (the order of enforcement see Art. 2), dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 42. The State Registration and Re-Registration of Legal Entities
1. A legal entity which is a non-profit organization is subject to state registration with the judicial authorities.
A legal entity that is a commercial organization is subject to state registration with the State Corporation "Government for Citizens", except for cases stipulated by the legislative acts of the Republic of Kazakhstan.
The procedure for state registration shall be determined by the legislation of the Republic of Kazakhstan.
2. State registration data, including the name of legal entities, and for commercial organizations - the company name, are included in the National Register of Business Identification Numbers.
3. A legal entity shall be deemed to be created from the moment of its state registration. 4. Branches and representations shall be registered in accordance with the procedure
established by legislative acts. Branches and representations shall be subject to re-registration in the event that they
change their name. 5. Violation of legal entity formation procedure established by the law or noncompliance
of its foundation documents with the law shall cause the refusal to register the legal entity. The refusal to register on the basis of non-expedience of the formation of a legal entity shall not be allowed.
The denial of state registration and also the evasion of such registration may be challenged in a court.
6. A legal entity shall be subject to re-registration in the following cases: 1) reduction of the size of the charter capital; 2) change of name; 3) alteration of the membership of participants in business partnerships (except for the
business partnerships, in which maintaining of the register of members of an business partnership is carried out by the professional participant of the paper market, who carries out activities in maintaining the system of registers of securities holders).
Amendments introduced to foundation documents on specified grounds shall be invalid without the re-registration of the legal entity.
Footnote. Article 42 as amended by the Laws of the Republic of Kazakhstan dated 15.07.1996 No. 30; dated 11.07.1997 No. 154; dated 02.03.1998 No. 211; dated 10.07.1998
No. 282; dated 16.05.2003 No. 416; dated 08.07.2005 N 72 (the order of enforcement see Art. 2); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication); dated 28.12.2011 No. 524-IV (the order of enforcement see Art. 2); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 02.04.2019 № 241-VI (shall be enforced dated 01.07.2019).
Article 43. Branches, representative offices and other separate structural subdivisions of a legal entity
1. A branch is a separate subdivision of a legal entity located outside its location and carrying out all or part of its functions, including the representation functions.
2. A representative office is a separate subdivision of a legal entity located outside its location and carrying out protection and representation of the interests of a legal entity that performs transactions and other legal actions on its behalf, except for the cases provided for by legislative acts of the Republic of Kazakhstan.
3. Branches and representative offices are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by them.
4. Legal entities have the right to establish other separate structural subdivisions, except for the cases established by laws.
Another separate structural subdivision of a legal entity is a territorially separate subdivision, at the location of which there are stationary workplaces that perform part of the functions of a legal entity. The workplace is considered stationary if it is created for a period of more than one month.
Another separate structural subdivision of a government agency is established in cases directly stipulated by laws.
5. Heads of structural subdivisions (branches and representative offices) of public associations are elected in accordance with the procedure stipulated by the charter of the public association and the regulations on its branch or representative office.
Heads of structural subdivisions (branches and representative offices) of religious associations are elected or appointed in accordance with the procedure stipulated by the charter of a religious association and the regulations on its branch or representative office.
Heads of branches and representative offices of other forms of legal entities are appointed by the authorized body of a legal entity and act on the basis of its power of attorney.
Footnote. Article 43 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 44. The Liability of a Legal Entity
1. Legal entities, except for special financial companies, state Islamic special financial companies, financed by the founder of institutions and state enterprises, are responsible for their obligations with all their property.
An institution shall be liable for its obligations with the funds at its disposal. When those are not sufficient the liability for the obligations of an institution shall be borne by its founder.
A public enterprise shall be liable for its obligations with the funds at its disposal. When funds of a state owned institution are not sufficient, the liability for its obligations
shall be borne by the Government of the Republic of Kazakhstan or the administrative-territorial unit by the means of the appropriate budget.
Special financial company shall be responsible for its obligations in manner required by the legislation of the Republic of Kazakhstan on project financing or securitization.
A state Islamic special financial company is responsible for its obligations with the money at its disposal.
2. An founder (participant) of a legal entity or the owner of its property shall not be liable under its obligations, and the legal entity shall not be liable under obligations of founder ( participant) of the legal entity, or of the owner of its property, except for the cases stipulated by this Code, other legislative acts, or the foundation documents of a given legal entity.
3. If an intentional bankruptcy of a legal entity is caused by the actions (inaction) of its founder (participant) and (or) an official, if a legal entity does not have sufficient funds, the founder (participant) and (or) the official bears subsidiary responsibility before the creditors.
If a false bankruptcy of a legal entity is caused by the actions (inaction) of its founder ( participant) and (or) an official, if a legal entity does not have sufficient funds, the founder ( participant) and (or) the official bear subsidiary responsibility for losses caused to the creditor as a result of a false bankruptcy.
4. A legal entity shall bear liability before third persons under obligations assumed by a body of the legal entity in excess of its powers established by the foundation documents, except for cases stipulated in paragraph 11 of Article 159 of this Code.
Footnote. Article 44 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154; dated March 2, 1998 No. 211; dated December 16, 1998 No. 320; dated November 4, 1999 No. 472; dated May 20, 2003 No. 417; dated February 20, 2006 No. 127 ( the order of enforcement see Art. 2); dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 01.03.2001 No. 414-IV (shall be enforced from the date of its first official publication); dated 12.01.2012 No. 539-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.11.2015 № 422-V ( shall be enforced from 01.01.2016); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 45. Reorganization of a Legal Entity
1. Reorganization of a legal entity (merger, acquisition, division, separation, transformation) shall be carried out upon the decision of the owner of property or the body authorized by the owner, the founders (participants), and also the body authorized by the constituent documents of the legal entity, or by decision of the judicial bodies, stipulated by legislative acts of the Republic of Kazakhstan. Legislation of the Republic of Kazakhstan may provide for other forms of reorganization.
Reorganization of a legal entity - voluntary pension savings fund, insurance (reinsurance) organization, Insurance Compensation Guarantee Fund, special financial company, payment institution is carried out taking into account the specifics stipulated by the legislation of the Republic of Kazakhstan on pensions, insurance and insurance activities, Insurance Compensation Guarantee Fund, project financing and securitization, payments and payment systems.
Reorganization of the joint-stock companies shall be carried out taking into account the peculiarities established by the legislation act of the Republic of Kazakhstan concerning joint-stock companies.
2. Reorganization may be conducted voluntarily or compulsorily. 3. A compulsory reorganization may be effected pursuant to the decision of judicial
bodies in the cases specified by legislative acts. If the owner of the property of a legal entity, a body authorized by it, its founders or a
body of a legal entity which is authorized to reorganize it by the foundation documents does not perform the reorganization of the legal entity within the term defined in the decision of the judicial body, the court shall appoint an administrator of the legal entity and order him ( her) to carry out the reorganization of the legal entity. From the moment of the appointment of the administrator all the powers associated with the management of the legal entity's business shall be transferred to him (her). The administrator shall act on behalf of the legal entity in the court of law, compile the dividing balance sheet and present it for the approval of the court together with the foundation documents of the legal entities which emerge as a result of the reorganization of the legal entities. The approval by the court of the indicated documents shall be the basis for the state registration of the newly-emerged legal entities.
4. A legal entity shall be regarded to be reorganized, except for the case of reorganization in the form of acquisition, from the moment of the registration of the newly-emerged legal entities.
When reorganizing a legal entity by merging with another legal entity, the first of them is considered to be reorganized from the moment of entering information on termination of activities of the affiliated legal entity into the National Register of Business Identification Numbers.
Footnote. Article 45 as amended by the Laws of the Republic of Kazakhstan dated 19.06.1997 No. 134; dated 18.12.200 No. 128; dated 08.07.2005 No. 72 (the order of enforcement see Art. 2); dated 20.02.2006 No. 127 (the order of enforcement see Art. 2);
dated 30.12.2009 No. 234-IV; dated 12.01.2012 No. 539-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 21.06.2013 № 106-V (shall be enforced upon expiry of ten calendar days after its first official publication ); dated 26.07.2016 № 12-VІ (shall be enforced upon expiry of thirty calendar days after the day its first official publication).
Article 46. The Legal Succession when Legal Entities are Reorganized
1. When legal entities merge, the rights and obligations of each of them shall be transferred to the newly-emerged legal entity in accordance with the delivery acceptance act.
2. When a legal entity is acquired by any other legal entity, the rights and obligations of the acquired legal entity shall be transferred to the latter in accordance with the delivery acceptance act.
3. When a legal entity is divided, its rights and obligations shall be transferred to the newly-emerged legal entities in accordance with the dividing balance sheet.
4. When one or several legal entities are appropriated out of a legal entity, the rights and obligations of the reorganized legal entity shall be transferred to each one of them in accordance with the dividing balance sheet.
5 . When a legal entity of one is transformed into a legal entity of another (altering its organizational and legal form), the rights and obligations of the reorganized legal entity shall be transferred to the newly-emerged legal entity in accordance with the delivery acceptance act.
Article 47. The Delivery Acceptance Act and Diving Balance Sheet
1. The property rights and obligations of a reorganized legal entity shall be transferred to the newly created legal entity: in accordance with the delivery acceptance act in the case of mergers and acquisitions; and in accordance with the dividing balance sheet in the case of divisions and appropriations.
The delivery acceptance act and dividing balance sheet must contain the provisions concerning the legal succession with regard to all the obligations of the reorganized legal entity with regard to all its creditors and debtors, including the obligations which are challenged by parties.
2. The delivery acceptance act and dividing balance sheet shall be approved by the owner of the property of the legal entity or by the body which adopted the decision to reorganize the legal entity, and submitted together with the foundation documents for the registration of the newly-emerged legal entities or the introduction of amendments to the foundation documents of existing legal entities.
Failure to present an appropriate delivery acceptance act or dividing balance sheet together with the foundation documents and also the absence of provisions concerning legal succession with regard to the obligations of the reorganized legal entity in them shall entail the denial of the state registration of the newly emerged legal entities.
3. Property (rights and obligations) shall be transferred to a legal successor at the moment of its registration, unless otherwise provided for by legislative acts or in the decision concerning the reorganization.
Article 48. The Guarantees of the Rights of Creditors of a Legal Entity in the Case of its Reorganization
1. Owner of property of a legal entity or the body that made the decision to reorganize a legal entity shall be obliged to notify the creditors of the reorganized legal entity thereof in writing. The period for filing claims may not be less than two months from the receipt of notices by the creditors of the reorganized legal entity.
2. In the case of division or appropriation the creditor of a legal entity under reorganization shall have the right to demand a premature termination of the obligations, the debtor under which is that legal entity and compensation of losses.
3. If the dividing balance sheet does not provide for any possibility to identify the legal successor of the reorganized legal entity or the legal successor has not enough property to fulfill the obligations aroused prior to the reorganization the newly-emerged legal entities as well as the legal entity from which another legal entity was appropriated shall be jointly and severally responsible for the obligations of the reorganized legal entity before its creditors.
Footnote. Article 48 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 02.04.2010 No. 262-IV (shall be enforced from 21.10.2010); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 49. Grounds for the Liquidation of a Legal Entity
1. Upon the decision of the owner of its property or the body authorized by the owner, as well as the body of the legal entity authorized by the constituent documents, the legal entity may be liquidated for any reason.
Liquidation of a legal entity - a voluntary pension savings fund, an insurance (reinsurance ) organization, an Insurance Compensation Guarantee Fund, a special financial company, a cotton processing organization is carried out taking into account the specifics provided for by the legislation of the Republic of Kazakhstan on pensions, insurance and insurance activities, Insurance Compensation Guarantee Fund, project financing and securitization, development of cotton industry.
2. A legal entity may be liquidated in accordance with a court decision in the following cases of:
1) bankruptcy; 2) recognition of registration of a legal entity as invalid, because of violations of
legislation made in the formation of that legal entity, which cannot be eliminated; 3) the absence of a legal entity, as well as the founders (participants) and officers, without
which a legal entity may not operate for one year, at its location or the actual address; 4) carrying out of activities in gross violation of the legislation: systematically carrying out of activities contradicting the statutory purposes of the legal
entity; carrying out activities without a proper license or activities prohibited by legislative acts; 5) in any other cases specified by legislative acts. 3. The claim to liquidate a legal entity on the grounds indicated in the second paragraph of
this Article, may be presented to the court by the state body to which the right to file such claims is granted by the legislative acts, and in the cases of bankruptcy - also by the creditor.
Obligations associated with the performance of the liquidation of a legal entity may be entrusted by a court decision concerning the liquidation of that legal entity to the owner of its property, to the body authorized by the owner, to the body authorized for the liquidation of a legal entity by the foundation documents or to any other bodies (person) appointed by the court.
4. If the value of property of a legal entity, in respect of which a liquidation decision is taken in the manner prescribed by paragraph 1 of this article, is not sufficient to satisfy the creditors' claims, such legal entity must be liquidated in accordance with the procedure established by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy.
5. Liquidation of certains of legal entities shall be possible, pursuant to a decision of the relevant body which is authorized by the state, on the grounds stipulated in legislative acts.
Footnote. Article 49 as amended by the Laws of the Republic of Kazakhstan dated 21.01.1997 No. 68; dated 19.06.1997 No. 134; dated 02.03.1998 No. 211; dated 18.12.2000 No. 128; dated 24.12.2001 No. 276 (shall be enforced from 01.01.2002); dated 20.02.2006 No. 127 (the order of enforcement see Art. 2); dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); dated 21.07.2007 No. 299; dated 30.12.2009 No. 234 -IV; dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication); dated 12.01.2012 No. 539-IV (shall be enforced after upon expiry of ten calendar days after its official publication); dated 21.06.2013 № 106-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 07.03.2014 № 177- V (shall be enforced upon expiry of ten calendar days after the day its first official publication ); dated 16.05.2014 № 203-V (shall be enforced upon expiry of six months after the day its first official publication).
Article 50. The Procedure for the Liquidation of Legal Entities
1. The owner of the property of the legal entity or the body that made the decision to liquidate the legal entity is obliged to immediately notify the judicial body or the State Corporation "Government for Citizens", which carries out the registration of legal entities, the state revenue body at the place of registration in writing or via an Internet resource with the use of an electronic digital signature about it.
2. The owner of the property of a legal entity or a body which took the decision to liquidate the legal entity shall appoint the Liquidation Commission and establish the procedure and dates for the liquidation in accordance with this Code.
From the moment that the Liquidation Commission is appointed, it shall acquire the powers associated with managing of the property and the business of the legal entity. The Liquidation Commission shall act in the court on behalf of the legal entity under liquidation.
3. Liquidation committee publishes information on liquidation of a legal entity, as well as the procedure and deadline for filing claims by its creditors in periodicals distributed throughout the territory of the Republic of Kazakhstan. The period for filing claims may not be less than two months from the date of publication of the announcement of liquidation, except for cases of bankruptcy. In case of bankruptcy, the claims of creditors to the bankrupt should be declared not later than within a month from the date of publication of the announcement on the procedure for filing claims by creditors.
A Liquidation Commission shall take steps to identify creditors and to recover debts, and also it shall give creditors written notice about the legal entity liquidation.
4. Upon expiry of the period for creditors to file their claims, the Liquidation Commission shall compile the intermediary liquidation balance-sheet which shall contain information concerning the composition of the property of the legal entity under liquidation, the list of claims filed by the creditors, and also concerning the results of the examination of them.
The intermediary liquidation balance-sheet shall be approved by the owner of the property of the legal entity or by the body which took the decision to liquidate that legal entity.
When drawing up intermediary liquidation balance-sheet the property of the liquidating legal entity shall not include allocated assets, which are collaterals for the special financial company’s obligations in project finance, for the special financial company’s bonds during securitization, issued in accordance with the legislation of the Republic of Kazakhstan on project finance and securitization and mortgage property that is following collateral for the mortgage bonds: rights to claim under the agreement mortgage loan (including mortgage certificates), as well as government securities of the Republic of Kazakhstan in the cases where the ownership of the bonds came from their holders or transferred to them on transactions or on other grounds stipulated by legislative acts of the Republic of Kazakhstan. Specified property and leased assets shall be transferred by liquidation committee to the representative of mortgage bond holders, representative of creditors and (or) holders of bonds,
representing, determined in accordance with the legislation of the Republic of Kazakhstan on project finance and securitization, to satisfy the claims of creditors.
When drawing up an interim liquidation balance sheet, the property of a state Islamic special financial company being liquidated does not include the property sold to the state Islamic special financial company on the basis of a decision of the Government of the Republic of Kazakhstan. The specified property is transferred by the liquidation commission to the ownership of the Republic of Kazakhstan in the manner and within the terms determined by the Government of the Republic of Kazakhstan.
5. If a legal entity under liquidation (except for state-owned institutions) is short of funds for the satisfaction of the creditors' claims, the liquidation commission shall carry out a sale of the assets of the legal entity in a public auction in accordance with the procedure established for the execution of court decisions.
When selling pledged property included in the property of the legal entity being liquidated from a public auction, the requirements of pledge creditors are satisfied mainly to other creditors within the amount received from the sale of pledged property.
In case of insufficiency of the sum from realisation of a subject of pledge the remained sum of requirements of the pledge creditor shall be satisfied in order of priority established by article 51 of the present Code.
6. Payment of money to creditors of the liquidated legal person shall be made by the liquidation commission in order of priority established by article 51 of the present Code, according to the intermediate liquidation balance sheet, since the date of its approval. Features of distribution of property of joint-stock companies shall be established by the legislation of the Republic of Kazakhstan on joint-stock companies.
If the property of the legal entity being liquidated contains pledged property, the pledge creditor shall have the right to satisfy its claims by accepting pledged property in kind.
The Liquidation Commission within ten working days from the date of receipt of the notification from the pledge creditor on acceptance of the pledged property in kind carries out its assessment.
The transfer of pledged property to the pledge creditor shall be made after the assessment, taking into account the requirements stipulated by parts five and six of this paragraph.
If the estimated value of the pledged property, less the expenses incurred for the assessment of the pledged property, is greater than the claims of the pledge lender, the difference shall be returned by the pledge lender to the property of the legal entity being liquidated.
If the estimated value of pledged property less expenses incurred for assessment of the pledged property is less than the claim of the pledge creditor, the claim of the pledge creditor in the amount of the difference shall be satisfied in order of priority established by Article 51 of this Code.
7. Upon completion of the settlements with creditors, the liquidation commission shall compile the liquidation balance-sheet, which shall be approved by the owner of the assets of the legal entity, or by the body which adopted the decision to liquidate the legal entity.
8. The assets which remain upon the satisfaction of creditors' claims shall be used for the purposes indicated in the foundation agreements.
9. In the event that a public enterprise in liquidation is short of assets, and in the case of an institution in liquidation being short of monetary resources funds for satisfying the claims of creditors, the latter shall have the right to appeal to the court with an action to satisfy the remaining amount of claims at the expense of the owner of the assets of the enterprise or institution.
9-1. Is excluded by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV ( shall be enforced from the date of its first official publication).
10. Liquidation of a legal entity is considered complete, and a legal entity - ceased its activity after entering information about this in the National Register of Business Identification Numbers.
Footnote. Article 50 as amended by the Laws of the Republic of Kazakhstan dated July 5, 1996 No. 30; dated July 11, 1997 No. 154; dated March 2, 1998 No. 211; dated July 10, 1998 No. 282; dated December 16, 1998 No. 320; dated June 3, 2003 No. 426; dated January 10, 2006 No. 115 (shall be enforced from the date of its official publication); dated February 20, 2006 No. 127 (the order of enforcement see Art. 2); dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 01.03.2011 No. 414-IV (shall be enforced from the day of its first official publication); dated 12.01.2012 No. 539-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 07.11.2014 № 248-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 29.10.2015 № 376-V (shall be enforced from 01.01.2016); dated 24.11.2015 № 422-V (shall be enforced from 01.01.2016); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day of its first official publication); No. 241-VI dated 02.04.2019 (shall be enforced dated 01.07.2019).
Article 51. Satisfying the Claims of Creditors
1. In case of liquidation of a legal entity, except for cases of bankruptcy, the claims of its creditors shall be satisfied in the following order:
1) on a first-priority basis, the claims to discharge aliments withheld from wage and (or) other income as well as the claims of citizens to whom the enterprise in liquidation bears the
liability for causing harm to life and health, by way of capitalizing appropriate periodic payments shall be satisfied;
Note by RCLI! Amendment of sub-point 2) is provided by the Law of the Republic of Kazakhstan dated
02.08.2015 № 342-V shall be enforced from 01.01.2020).( 2) secondly - calculations are made for remuneration for labor and payment of
compensation to persons who worked under an employment contract, payment of arrears for social contributions to the State Social Insurance Fund, mandatory pension contributions, deducted from salaries, contributions and (or ) payments to compulsory social health insurance in the fund of social health insurance, as well as payment of fees under copyright contracts, except for the cases when part of the amounts of claims in accordance with the legislative act of the Republic of Kazakhstan regulating bankruptcy matters is satisfied in the fifth turn.
3) in the third place - creditors' claims on the obligations secured by the pledge of the property of the bankrupt being liquidated shall be satisfied within the limits of the security amount, except for the claims of creditors - holders of mortgage bonds secured by the pledge of the rights of claim under the housing mortgage loan agreements (including the pledge of mortgage certificates), state securities of the Republic of Kazakhstan in cases when the ownership of the said bonds has arisen for their holders or has passed to them under transactions or on other grounds, provided provided by legislative acts of the Republic of Kazakhstan, and also requirements of creditors which are satisfied according to a part of second point 5 or a part of second point 6 of article 50 of the present Code;
4) on a fourth -priority basis, the tax and other compulsory payment debt shall be repaid. 5) in the fifth turn - settlements with other creditors in accordance with the legislative acts
of the Republic of Kazakhstan, as well as with the pledge creditors in cases provided for by part three of paragraph 5 and part six of paragraph 6 of Article 50 of this Code;
2. The claims of each priority shall be satisfied upon the complete satisfaction of the claims of the previous priority.
3. If assets of a legal entity in liquidation are not sufficient, they shall be distributed among the creditors of each relevant turn in proportion to the amounts of claims which are subject to satisfaction, unless otherwise is provided for by law.
4. In the case of the refusal of the liquidation commission to satisfy the claims of a creditor or of an evasion from their consideration, the creditor shall have the right, prior to the approval of the liquidation balance-sheet of a legal entity, to appeal to the court with the action against the liquidation commission. Upon the decision of the court, the claims of the creditor may be satisfied at the expense of the remaining assets of the legal entity in liquidation.
5. The assets which remain upon the satisfaction of the claims of creditors of the legal entity, shall be transferred to its owner or the founders (participants) which have corporeal
rights to those assets or any obligatory rights to the legal entity, unless otherwise provided for by legislation or the foundation documents of the legal entity.
6. The claims of creditors which are not satisfied because of a shortfall of assets of the legal entity in liquidation and also those which are not claimed before the approval of the liquidation balance-sheet shall be deemed to be satisfied.
Also the claims of creditors which are not recognized by the liquidation commission shall be deemed to be cancelled, unless the creditor appeals to the court with the action, as well as the claims the satisfaction of which was denied to the creditors by the court.
Footnote. Article 51 as amended by the Laws of the Republic of Kazakhstan dated January 21, 1997 No. 68; dated March 2, 1998 No. 211; dated July 11, 2001 No. 239; dated July 3, 2003 No. 426; dated April 8, 2004 No. 542 (shall be enforced from January 1, 2005); dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 21.06.2013 № 106-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 16.11.2015 № 406-V (shall be enforced from 01.07.2017); dated 02.04.2019 № 241-VI (shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 52. Bankruptcy
Bankruptcy is an insolvency of a debtor recognized by a court decision, which is the basis for its liquidation.
Note by RCLI! Amendment of part two is provided by the Law of the Republic of Kazakhstan dated
02.08.2015 № 342-V shall be enforced from 01.01.2020).( Insolvency refers to the inability of a debtor (an individual entrepreneur or legal entity),
established by the court, to fully satisfy the claims of creditors in respect of monetary obligations, make payroll calculations with persons who work under an employment contract, ensure payment of taxes and other mandatory payments to the budget, social contributions to State Social Insurance Fund, deductions and (or) contributions to compulsory social health insurance in the fund of social medical insurance, as well as the mandatory pension contributions and mandatory occupational pension contributions.
Footnote. Article 52 is in the wording of the Law of the Republic of Kazakhstan dated 21.01.1997 No. 68, dated 29.06.1998 No. 238, as amended by the Law of the Republic of Kazakhstan dated 05.07.2008 No. 60-IV (the order of enforcement see Art. 2); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 16.11.2015 № 406-V (shall be enforced from 01.07.2017).
Article 53. Composition in Bankruptcy
1. Recognition of bankruptcy is possible in a voluntary or compulsory procedure. 2. Recognition of bankruptcy in a voluntary procedure shall be carried out on the basis of
the debtor's application to the court. 3. Recognition of bankruptcy in a compulsory procedure shall be carried out on the basis
of the creditor application to the court, and in the cases provided for by legislative acts, also applications from other entities.
Footnote. Article 53 is in the wording of the Laws of the Republic of Kazakhstan dated January 21, 1997 No. 68; dated July 29, 1998 No. 238.
Article 54. Rehabilitation Procedures
Any measures aimed at the restoration of the debtor's solvency for the purpose of preventing the liquidation, which do not contradict legislation, may be applied to an insolvent debtor.
These measures are implemented within the framework of the accelerated rehabilitation procedure, rehabilitation procedure, the procedure and terms of which are determined by the legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy.
Footnote. Article 54 is in the wording of the Law of the Republic of Kazakhstan dated 17.02.2012 No. 564-IV (shall be enforced upon expiry of ten calendar days after its first official publication); as amended by the Law of the Republic of Kazakhstan dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 54-1. External Monitoring
Footnote. Article 54-1 is excluded by the Law of the Republic of Kazakhstan dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 55. Consequences of initiation of bankruptcy proceedings
1. From the day the court makes a decision on declaring a debtor bankrupt and commencement of bankruptcy proceedings:
1) the owner of the property of the bankrupt (the body authorized by it), the founders ( participants), all bodies of the bankrupt legal entity are prohibited from alienating the property and paying off obligations;
2) the terms of all debt obligations of the bankrupt are considered expired; 3) accrual of penalty and remuneration (interest) on all types of debts of the bankrupt is
terminated;
4) disputes of a property nature with the bankrupt's participation that are considered in court are terminated, if the decisions taken on them have not come into force;
5) claims may be brought against the bankrupt only within the bankruptcy procedure, except for the claims for implementation of guarantees of third parties, as well as the enforcement of collateral in cases where the third parties act as a pledger;
6) on the basis of the application of the temporary or bankruptcy administrator and the provided copy of the court's decision to declare the debtor bankrupt, all restrictions and encumbrances on the bankrupt estate (collection orders of financial and government agencies on bank accounts of the debtor, seizure of property, imposed by bailiffs, etc.) are removed without taking the relevant decisions of the bodies that imposed them;
7) imposition of new arrests on the property of the bankrupt and other restrictions on disposal of assets of the bankrupt shall be allowed only on claims for recognition of the transaction null and reclamation of property from unlawful possession, applicable to the bankrupt;
8) the bankrupt’s estate, not transferred to the purchaser at the time of initiation of bankruptcy proceedings shall be included in the estate of the bankrupt and the creditor or purchaser frustrated by failure to fulfill obligations has the right to file claims against the debtor within bankruptcy procedures.
Footnote. Article 55 in the new wording of the Law of the Republic of Kazakhstan dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 56. Release of an Insolvent Debtor from Debt
1. After the sale of property and distribution of funds received from the sale among creditors, the insolvent debtor shall be released from execution of outstanding obligations and other requirements filed for execution and accounted for, when the legal entity was recognized as bankrupt.
2. An insolvent debtor shall not receive a release from his obligations in the event that he concealed, or transferred a part of his property to another party for the purposes of concealing , within a year prior to the beginning of the bankruptcy proceedings, or concealed or falsified relevant accounting information, in particular accounting ledgers, accounts, and documents.
Footnote. Article 56 is in the wording of the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; as amended by the Law of the Republic of Kazakhstan dated July 11, 2001 No. 239; dated January 10, 2006 No. 115 (shall be enforced from the date of its official publication).
Article 57. The termination of Activities of a Legal Entity which is a Bankrupt
1. The recognition by the court of a legal entity as insolvent (bankrupt) shall entail its liquidation.
2. Activities of a bankrupt legal entity shall be deemed terminated upon its deletion from the National Register of Business Identification Numbers.
Footnote. Article 57 as amended by the Law of the Republic of Kazakhstan dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication).
II. Business Partnerships 1. General Provisions
Article 58. The Basic Provisions Concerning Business Partnerships
1. A business partnership shall be recognized to be a commercial organization with its charter capital divided into shares (contributions) 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 of its activities shall belong to it under the right of ownership.
2. Business partnerships may be created in the form of a full partnership, partnership in commendam, limited liability partnership, partnership with additional liability.
3. Business partnership, except full and partnerships in commendam can be created by one person, who becomes its only participant.
Only citizens may be the participants of a full partnership and full partners in a partnership in commendam.
4. The charter and the foundation agreement shall be the foundation documents of a business partnership.
The charter shall be the foundation document of a business partnership which is established by one person (one participant).
5. Is excluded by the Law of the Republic of Kazakhstan dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication).
6. The foundation documents of a business partnership must also contain, apart from the information indicated in paragraphs 4 and 5 of article 41 of this Code, the provisions concerning the shares of each of participants; the size, composition, deadlines and the procedure for their making the contributions to the charter capital of the partnership; concerning the liability of the participants for the violation of the obligations with regard to making the contributions to the charter capital of the partnership, and any other information which is contemplated by legislative acts.
7. Excluded by the Law of the Republic of Kazakhstan dated 02.03.1998 № 211.
8. A business partnership may be the foundation party of any other business partnerships, except for the cases specified in legislative acts.
9. Excluded by the Law of the Republic of Kazakhstan dated 02.07.2018 № 166-VI (shall be enforced upon expiration of ten calendar days after the day of its first official publication).
Footnote. Article 58 as amended by the Laws of the Republic of Kazakhstan dated 11.07.1997 No.154; dated 02.03.1998 No. 211; dated 10. 07.1998 No. 282; dated 16.05.2003 No. 416; dated 08.07.2005 No. 72 (the order of enforcement see Art. 2); dated 12.01.2007 No . 225 (shall be enforced from the date of its official publication); dated 20.01.2010 No. 239- IV; dated 28.12.2011 No. 524-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 02.07.2018 № 166-VI (shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 59. Contributions to the Charter Capital of a Business Partnership. The Share of a Participant in the Charter Capital and in the Assets of a Partnership
1. Money, securities, objects, property rights, including intellectual property including the rights to results of intellectual property activity and any other assets (except for the special financial companies established according to the legislation of the Republic of Kazakhstan on project financing and securitization, microfinance institutions established according to the legislation of the Republic of Kazakhstan on microfinance institutions and Islamic special financial companies established according to the legislation of the Republic of Kazakhstan on the security market charter capital of which is provided only by money) may be a contribution to the charter capital of a business partnership.
Contributions of founders (shareholders) to the charter capital in kind or in the form of property rights are valued in cash by agreement of all founders or by decision of the general meeting of all shareholders of the partnership. If the value of such contribution exceeds the amount equivalent to twenty thousand of monthly calculation indices, its evaluation shall be confirmed by the valuer.
The money's worth of the participants' contributions may be confirmed by accounting documents of the partnership or the statement of its auditors, when a business partnership is re-registered.
The founders (participants) of a partnership, within five years from the moment of such valuation, shall bear joint and several liability to creditors of the partnership within the limits of the amount on which the value of the contribution was overstated.
In the cases where the right to use property is transferred to a partnership as a contribution , the size of such a contribution shall be determined by a payment for the use of such property , as calculated for the entire period indicated in the foundation documents.
It is not allowed to make deposits in the form of personal non-property rights and other intangible benefits. Also, it is not allowed to make deposits by offsetting the participants' claims to the partnership, except for the cases provided for by legislative acts of the Republic of Kazakhstan.
2. Shares of all participants in the charter capital, and accordingly their shares in the value of property of the business partnership (a share in the property) shall be proportionate to their contributions into the charter capital, unless it is otherwise stipulated in the foundation documents.
A participant in an economic partnership has the right to pledge and (or) sell its share or a part thereof in the property (authorized capital) of the partnership, unless otherwise stipulated by legislative acts of the Republic of Kazakhstan or constituent documents.
A contract of alienation (assignment) of the right of a retiring participant of an economic partnership to a share in the property (authorized capital) of a partnership or a part thereof, to which the individual is a party, shall be notarized.
3. The procedure and deadlines for making the contributions to the charter capital and also liability for the failure to fulfill the obligations associated with the formation of the charter capital, shall be established in legislative acts and (or) foundation documents.
4. Reduction of the charter capital of a business partnership shall be allowed only after the notification of all its creditors. The latter, in this case, shall have the right to demand premature termination the partnership ahead of time, or execution of the relevant obligations, and compensation for their losses.
Reduction of the charter capital, in violation of the procedure established in this paragraph , shall be the basis for the liquidation of the partnership, pursuant upon a decision of the court, pursuant to an application from interested parties.
Footnote. Article 59 as amended by the Laws of the Republic of Kazakhstan dated 15.07.1996 No. 30, dated 11.07.1997 No. 154, dated 02.03.1998 No. 211, dated 20.02.2006 No. 127 (the order of enforcement see Art. 2), dated 05.05.2006 No. 139 (the order of enforcement see Art. 2), dated 12.02.2009 No. 133-IV (the order of enforcement see Art. 2), dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication), dated 12.01.2012 No. 539-IV (shall be enforced upon expiry of ten calendar days after its first official publication), dated 26.11.2012 No. 57-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.12.2012 № 60-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.11.2015 № 422-V (shall be enforced from 01.01.2016); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 21.01.2019 № 217-VI (shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 60. Managing a Business Partnership
1. The general meeting (meeting of the representatives) of the participants shall be the supreme body of a business partnership.
In business partnerships, except for the full partnership and partnership in commendam, founded by one person, the powers of a general meeting shall belong to its sole participant.
2. In a business partnership there shall be an executive body (collective or (and) individual), which carries out the day-to-day management of its activities and which is accountable to the general meeting (meeting of the representatives) of its participants. The individual governing body may not be from among its participants.
The following may be formed as collegiate bodies of a partnership: 1) the board (directorate); 2) the supervisory council; 3) other bodies in the cases stipulated in legislative acts, or by a decision of the general
meeting (the meeting of representatives) of participants of a business partnership. 2-1. In cases of recognition of a business partnership as bankrupt or application of a
rehabilitation procedure and appointment of a temporary or bankrupt or rehabilitation manager in the manner prescribed by law, all powers to manage it are transferred to the temporary or bankrupt or rehabilitation manager, respectively.
3. The authority of the governing bodies of a business partnership, the procedure for their election (appointment) and also the procedure for their adoption of decisions shall be determined in accordance with this Code, legislative acts and the foundation documents.
4. In order to audit, and to confirm the accuracy of financial statements, a business partnership may hire a professional auditor, who is not related to the partnership or its participants by property interests (independent audit).
Auditing of a business partnership must be carried out at any time, pursuant to a claim of one or several participants of the partnership at the expense of its (their) funds.
The procedure for conducting an audit of a business partnership activity shall be established by legislation and the foundation documents of the partnership.
Footnote. Article 60 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated April 22, 1998 No. 221; dated May 5, 2006 No. 139 (the order of enforcement see Art. 2); dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 61. The Rights and Obligations of Participants of a Business Partnership
1. The participants of a business partnership shall have the following rights: 1) to participate in managing the affairs of the business partnership in accordance with the
procedure which is determined in the foundation documents;
2) to obtain information concerning the activities of the business partnership and to peruse its documents in accordance with the procedure established by the foundation documents;
3) to participate in distribution of net income. The terms of the constituent documents providing for elimination of one or more participants from participation in distribution of net income are void;
4) to obtain in the case of liquidation of a business partnership part of its property which corresponds to their share in the property of the partnership, which remains after the settlements with the creditors or its worth;
2. The participants of a business partnership shall be obliged as follows: 1) to comply with the requirements of the foundation documents;
2) to make contributions in accordance with the procedure, in the amounts, by the methods and within the deadlines specified in the foundation documents;
3) not to divulge the information which the business partnership declares as a commercial secret.
The participants of a business partnership may bear any other responsibilities which are specified by the legislative acts of the Republic of Kazakhstan and the foundation documents.
Footnote. Article 61 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154; dated March 2, 1998 No. 211; dated February 19, 2007 No. 230 (the order of enforcement see Art. 2); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 62. Reorganization of Business Partnerships
1. Business partnerships of one may be reorganized into business partnerships of the others or into joint stock companies or in to production co-operatives upon a decision of the general meeting of the participants in the cases and in accordance with the procedures provided for by legislative acts.
2. When reorganizing a full or a partnership in commendam into a joint-stock company, limited liability or additional liability partnership, each full partner that became a participant of the joint-stock company, limited liability partnership or additional liability partnership, shall within two years bear subsidiary liability with all his assets on the obligations which were reorganized to the joint-stock company, the limited liability partnership or additional liability partnership from the full or partnership in commendam. The alienation by a former full partner of his shares shall not exempt him (her) from such a liability.
Footnote. Paragraph 1 of Article 62 is supplemented on the basis of the Law of the Republic of Kazakhstan dated July15, 1996 No. 30 "On Introduction of Amendment and Supplements into some Legislative Acts of the Republic of Kazakhstan. As amended by the Law of the Republic of Kazakhstan dated July16, 1999 No. 436.
2. Full Partnership
Article 63. The Fundamental Provisions Concerning Full Partnership
1. A partnership, which participants, in the case of the insufficiency of the property of the full partnership, bear a joint liability upon it obligations with all the property that they have shall be recognized as a full partnership.
2. A citizen may be the participant of only one full partnership.
Article 64. The Charter Capital of the Full Partnership
The amount of the charter capital of a full partnership shall be determined by it foundation parties, but it may not be less than the minimum amount specified by legislative acts of the Republic of Kazakhstan.
The minimum share capital of microfinance institutions, established in the form of a full partnership is defined by the legislation of the Republic of Kazakhstan on microfinance institutions.
Footnote. Article 64 is in the wording of the Law of the Republic of Kazakhstan dated 26.11.2012 No. 57-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 65. Managing the Affairs of a Full Partnership
1. The general meeting of a full partnership shall be the supreme body of the full partnership. Resolutions on the internal issues of a full partnership shall be adopted by unanimous consent of all the participants. The foundation agreement of a partnership may stipulate the cases, where a decision is to be adopted by a majority of votes of the participants . Each participant of a full partnership shall have one vote, unless the foundation agreement stipulates any other procedure for determining the number of votes of its participants. The foundation agreement may stipulate that the number of votes which is available to the participants shall be determined in proportion to their share in the charter capital.
2. Managing a full partnership subject to the provisions of paragraph 1 of this Article, shall be carried out by the executive bodies of the full partnership. Thes of, the procedure for the formation of governing bodies and their authority shall be defined in the foundation documents.
3. A participant of a full partnership shall not have the right to commit in his (her) name and his (her) interests or in the interests of third persons without consent of other participants, the transactions which are identical to those which constitute the object of activities of the
partnership. In the case of violating this rule, the partnership shall have the right to demand from such a participant either compensation of losses incurred by the partnership, or transfer to the partnership of all the benefits acquired through such transactions.
4. The bodies of a full partnership, to which it is delegated to transact the business of the partnership, shall be obliged to present comprehensive information about their activities to all the participants, upon their request.
5. A participant who acts for common interests without authorization, in the cases where his (her) actions are not approved by all the other participants, shall have the right to claim from the partnership compensation of expenditures incurred by him (her), under the condition that he (she) proves that due to his (her) efforts the partnership has economized or appropriately acquired assets which exceed in their value the expenditures incurred by the partnership.
Footnote. Article 65 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 66. Transfer of a Share (Part of a Share) of a Participant of a Full Partnership
1. A transfer by a participant of his (her) share (part of share) to any other participants of a full partnership or to third persons shall be possible only with the consent of all the other participants.
2. When transferring a share (part of the share) to a third entity, the transfer shall take place at the same time of the whole set of rights and obligations which belong to the participant who is exiting the full partnership.
3. In the case of the death of a participant of a full partnership, the legal successor ( inheritor) may enter the partnership with the consent of all the other participants.
4. The legal successor (inheritor) shall bear the liability on the debts of the participant before the full partnership and also on the debts of the partnership before the third persons, which arise during the period of the partnership's business.
5. When the legal successor (inheritor) refuses to enter the full partnership or the partnership refuses to accept the legal successor (inheritor), he (she) shall be paid the value of his (her) share in the assets of the partnership, which belongs to him (her) on the basis of the legal succession as determined on the day of the death of the participant.
In those cases the amount of property of the partnership, which is indicated in the foundation agreement (charter) shall be appropriately reduced within the deadlines provided for by the foundation agreement (charter) but not later than in three months.
Article 67. Leaving a Full Partnership
1. The participant of a full partnership may leave the partnership at any time notifying thereof the other participants not later than the term provided for by legislative acts or the foundation agreement.
2. If the full partnership persists after the exit of a participant, the exiting participant shall be paid the value his (her) share in the assets of the partnership in proportion to the contribution made, in accordance with the balance-sheet compiled on the day of the come out. The contribution may be returned entirely or partially in kind upon the demand of the participant and with the consent of the partnership. The exited participant shall also be paid the amount of net revenue which has been received by the partnership in that year during the period of his (her) being with the partnership within that year, which is owed to him (her).
Properties transferred by the participant of a partnership for use only shall be returned to him (her) in kind without remuneration.
Footnote. Article 67 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 68. The Exclusion of a Participant from a Full Partnership
1. The participants of a full partnership shall have the right to require the exclusion of one or of several participants from the partnership upon a unanimous resolution of the remaining participants in a judicial procedure, provided there are serious reasons for that, in particular, a gross violation by him/her (them) of his/her (their) obligations or when the inability to manage business becomes established.
2. A participant who is excluded from a full partnership, shall be paid the value of the part of property in accordance with the procedure determined in paragraph 2 of Article 67 of this Code.
Article 69. Imposition of a Claim upon the Share of a Participant in a Full Partnership
1. The imposition of a claim upon the share of a participant in the property of a full partnership for his (her) personal debts shall be allowed only in the case where his/his other assets are not sufficient to cover the debt. Creditors of such a participant shall have the right to demand from the full partnership of appropriation of a part of the property of the partnership in proportion to the share of the debtor in the charter capital for the purpose of imposing the claim on that property. The part of property of the partnership which is subject to appropriation, or its worth, shall be determined on the basis of the balance-sheet compiled at the moment of the presentation by the creditors of their claims to appropriate.
2. The imposition of a claim upon the share of a participant in the property of a full partnership shall terminate his (her) participation in the partnership, and it shall entail the consequences which are provided for by Articles 70 and 71 of this Code.
Footnote. Article 69 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 70. Liability of Participants for Debts of a Full Partnership
1. If in liquidating a full partnership it so happens that the property available is not sufficient to cover all its debts, the participants shall bear joint liability for the missing part, with all their property upon which in accordance with legislative acts, a claim may be imposed.
A participant of a full partnership shall be liable for the debts of the partnership irrespective of whether they emerged after or before his (her) entering the partnership, unless otherwise specified in legislative acts.
2. A participant who repaid the debts of a full partnership in excess of his (her) share in the property of the partnership, shall have the right to appeal with a regress claim for the appropriate amount, to the other participants who shall bear a shared liability before him (her) in proportion to their shares in the property of the partnership.
3. A participant who left a full partnership of his (her) own accord, or was excluded from the partnership upon the decision of the court, and also a legal successor (inheritor) of a deceased participant who refused the proposal to enter the partnership, shall be liable for the obligations of the partnership which arose prior to the moment of their departure, during the two year period from the date of the approval of the report on the activities for the year in which they exited the partnership.
4. A participant who left a full partnership in a procedure of transferring his (her) share to any other participant or third persons, in a procedure of imposing a claim upon his (her) share in the property of the partnership by a creditor (creditors), and also a legal successor (inheritor ) of a deceased participant, whom the other participants denied acceptance to the partnership, shall not be liable for the obligations of the partnership.
5. After the cessation of a full partnership, the participants shall be liable upon the obligations of the partnership, which arose prior to the moment of its cessation, for two years from the date of the cessation of the partnership.
6. Agreements of participants changing the order of their responsibility for the obligations of the general partnership provided for in this article are void.
Footnote. Article 70 as amended by the Law of the Republic of Kazakhstan dated March 2 , 1998 No. 211; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 71. Liquidation of a Full Partnership
1. A full partnership aside from the provisions indicated in Article 49 of this Code, shall also be liquidated in the case where a sole participant is left in a partnership, if he does not reorganize the partnership, nor accept new participants within six months.
2. In the cases of a departure or a death of one of the participants of a full partnership, as well as recognition of one of them as missing, incapable or partially incapable or a bankrupt, or of the imposition by a creditor of one of the participants of a claim on the property which corresponds to his (her) share in the charter capital, the partnership may continue its activities, if it is specified in the foundation documents of the partnership or by agreement of the remaining participants.
3. If one of the participants left the partnership on the grounds indicated in paragraph 2 of this Article, the shares of the remaining participants in the charter capital of the partnership shall be increased in proportion to their contributions, unless otherwise specified in the foundation documents.
Footnote. Article 71 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
3. Partnership in commendam
Article 72. The Fundamental Provisions Concerning a Partnership in Commendam
1. A partnership which includes besides one or more participants who bear additional liability for the obligations of the partnership with all their property (full partners) also one or more participants whose liability is limited by the amount of contribution made by them to the assets of the full partnership (investors) and which do not participate in the partnerships' entrepreneurial activities, shall be a partnership in commendam.
2. The legal status of full partners who participate in a partnership in commendam and the liability for the obligations of the partnership shall be determined by the rules concerning the participants of the partnerships in commendam.
3. A person may be a full partner only in one partnership in commendam. A full partner in a partnership in commendam may not be a participant of a full
partnership. 4. The rules of this Code concerning full partnership shall apply to partnerships in
commendam, as this does not contradict the provisions of this Code concerning partnerships in commendam.
Footnote. Article 72 as amended by the Law of the Republic of Kazakhstan dated March 2 , 1998 No. 211.
Article 73. Investor of a Partnership in Commendam
1. An investor of a partnership in commendam shall be obliged to make his (her) first contribution and additional contributions (investments) in the amount, by the method and in accordance with the procedure which are stipulated in the foundation documents.
2. A partner of a limited partnership has the right: 1) to receive a part of the net profit of the partnership due to its share in the authorized
capital, in accordance with the procedure provided for by the constituent documents; 2) to get acquainted with the financial statements of the partnership, and also to demand
the possibility to verify the correctness of their compilation; 3) to transfer its share in the authorized capital or its part to another partner or a third
party in the manner prescribed by the legislative acts of the Republic of Kazakhstan and the constituent documents of the partnership. The transfer by the partner of his entire share to another person terminates his participation in the partnership;
4) to withdraw from the partnership in the manner prescribed by the legislative acts of the Republic of Kazakhstan and the constituent documents.
Constituent documents of a limited partnership may provide for other rights of the depositor.
The waiver of the rights provided for by this Code and other legislative acts of the Republic of Kazakhstan for the partners of the limited partnership, or their limitations, including the agreement of partners and full partners, is null and void.
3. If an investor commits a transaction in the interest of the partnership in commendam without due authorization, then in the case of approving his (her) actions by the partnership, it shall be liable for the transaction before the creditors in the full volume. If approval is not obtained, the investor shall be liable to third persons independently with all his (her) property, upon which claims may be imposed in accordance with legislation.
Footnote. Article 73 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154, dated March 2, 1998 No. 211; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 74. Charter Capital of a Partnership in Commendam
1. The charter capital of a partnership in commendam shall be made up of the contributions of its participants. In the course of business activities, the charter capital may be altered. The charter capital discounting contributions of the investors shall determine the share of full partners in the property of a partnership in commendam.
2. The amount of the charter capital shall be determined by the full partners of a partnership in commendam and it may not be less than the minimum established by legislative acts.
The minimum share capital of microfinance institutions that were created in the form of a partnership in commendam is determined by the legislation of the Republic of Kazakhstan on microfinance institutions.
3. The reduction of the charter capital of a partnership in commendam shall be allowed after notifying all 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. Reduction of a charter fund charter capital in violation of the procedure established in this Article shall be a reason for the liquidation of the partnership in commendam in accordance with the decision of the court upon the application of the interested parties.
Footnote. Article 74 as amended by the Laws of the Republic of Kazakhstan dated 11.07.1997 No. 154, dated 02.03.1998 No. 211, dated 26.11.2012 No. 57-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 75. Managing Affairs of a Partnership in Commendam
Managing the affairs of a partnership in commendam shall be carried out by full partners. The procedure for managing and maintaining affairs of a full partnership by its full partners shall be established by themselves in accordance with the rules concerning full partnership. The investors shall not have the right to participate in the managing of the affairs of the partnership in commendam, nor to act on its behalf other than on the grounds of the power of attorney. The investors of a partnership in commendam shall not have the right to challenge the actions of full partners with regard to managing the affairs of the partnership.
Article 76. Cessation of a Partnership in Commendam
1. A partnership in commendam shall be terminated when all the investors participating in it exit from it. The full partners shall have the right to transform the partnership in commendam into a full partnership instead of liquidation. A partnership in commendam shall be liquidated also upon the grounds which are stipulated for the liquidation of a full partnership.
2. Upon the liquidation of a partnership in commendam the investors shall have a priority right, as compared to full partners, to receive their contributions from the property of the partnership, which remain after the satisfaction of the claims of its creditors. The assets which remain after that of the partnership in commendam, shall be distributed between the full partners and investors in proportion to their contributions to the assets of the partnership, unless another procedure is established in the foundation documents.
4. Limited Liability Partnerships
Article 77. Basic Provisions Concerning a Limited Liability Partnership
1. A partnership established by one or several persons, which charter capital is divided into shares stipulated in the foundation documents shall be recognized as the limited liability partnership; the participants of a limited liability partnership shall not be liable for its obligations and they shall bear the risk of losses associated with the activities of the partnership within the limits of the value of the contributions made by them. Exceptions from this rule may be provided for by this Code and the legislative acts.
The participants of a limited liability partnership who did not make their contributions in full, shall bear joint liability for its obligations within the value of the unpaid part of the contribution of each participant.
2. There is no limit to the number of members that can participate in a limited liability partnership.
A limited liability partnership cannot have as its only member another partnership consisting of only one member.
3. Upon the claim by any of its participants there must be conducted an audit of the activities of the limited liability partnership.
The public reports of a limited liability partnership shall not be required, except for the cases stipulated in legislation or the foundation documents.
4. A limited liability partnership may be voluntarily reorganized or liquidated upon a unanimous resolution of its participants. Any other grounds for a reorganization or liquidation of a limited liability partnership shall be determined by this Code and legislative acts.
A limited liability partnership shall have the right to be reorganized into another business partnership, joint-stock company or a production co-operative.
6. The legal status of a limited liability partnership, the rights and obligations of its members shall be determined by this Code and legislative acts.
Footnote. Article 77 as amended by the Laws of the Republic of Kazakhstan dated 15.07.1996 No. 30; dated 11.07.1997 No. 154; dated 02.03.1998 No. 211; dated 22.04.1998 No. 221; dated 16.07.1999 No. 436; dated 16.05.2003 No. 416.
Article 78. Charter Capital of a Limited Liability Partnership
1. The size of the charter capital of a limited liability partnership shall be determined by the founders (participants) of the limited liability partnership and it may not be less than the amount established by legislative acts.
The minimum size of the charter capital of microfinance institutions established in the form of a limited liability partnership shall be determined by the legislation of the Republic of Kazakhstan on microfinance institutions.
Footnote. Article 78 is in the wording of the Law of the Republic of Kazakhstan dated 26.11.2012 No. 57-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 79. Managing a Limited Liability Partnership
1. The scope of authority of the bodies of a partnership, as well as the procedure for their adoption of decisions or for acting on behalf of the partnership shall be defined in accordance with legislative acts and the charter of the partnership.
2. The following shall be referred to the exclusive authority of the general meeting of the participants of a limited liability partnership:
1) amendment of the partnership charter including the amendments of the amount of its charter capital;
2) election (appointment) of the member (members) of the executive body of a partnership and a premature termination of his/her (their) powers, as well as adoption of a decision on the transfer of the limited liability partnership or its property into trust management and defining of the terms of such a transfer;
3) approval of financial statements of the business partnership and distribution of its net income.
4) the decision concerning reorganization and liquidation of the partnership; 5) election and premature termination of the powers of the supervisory council and (or)
auditing commission (auditor) of a partnership, as well as the approval of reports and statements of the auditing commission (auditor) of a partnership;
6) approval of internal rules, procedures for their adoption and of other documents which regulate internal functioning of the partnership;
7) decision of the partnership's participation in other business partnerships as well as in non-profit organizations;
8) appointment of the liquidation commission and approval of liquidation balance sheets; 9) decision on forced purchase of a share from a participant of the limited liability
partnership in accordance with Article 82 of this Code. 3. Issues recognized as exclusive authority of General Meeting of the partnership
participants may not be delegated to an executive body of the partnership for its deciding. Footnote. Article 79 as amended by the Laws of the Republic of Kazakhstan dated July 11
, 1997 No. 154; dated March 2, 1998 No. 211; dated April 22, 1988 No. 221; dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated February 19, 2007 No. 230 (the order of enforcement see Art. 2).
Article 80. Transfer of a Share in the Charter Capital 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 assign his (her) share in the charter capital of a partnership or its part, at his (her) discretion to one or several participants of that partnership.
2. Alienation by a member of a limited liability partnership of its share (part thereof) to third parties is allowed, unless otherwise provided by the partnership's constituent documents or by legislative acts.
Participants in a limited liability partnership enjoy priority before third parties for the right to purchase a share or a part thereof, with the exception of cases provided for by this Code and the Law of the Republic of Kazakhstan “On Limited liability partnerships”. If the constituent documents or the agreement of the participants of the partnership do not provide otherwise, the pre-emptive right to purchase a share (part thereof) is exercised by the participants in proportion to the size of their shares in the authorized capital of the partnership .
If a share (or part thereof) is sold with a breach of the pre-emptive right of purchase, any participant in the limited liability partnership shall be entitled, within three months from the date of sale, to seek in court the transfer of the rights and obligations of the buyer to him.
3. If the selling of the share of a participant (part thereof) to third persons is not possible in accordance with the charter foundation documents of a limited liability partnership and the other participants of the partnership refuse to purchase it, the partnership shall be obliged to pay to the participant its actual value or to issue to him (her) 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 full payment only in the part which had been paid-up already.
5. If a share of a participant (part thereof) is acquired by the limited liability partnership itself, it shall be obliged to sell it to any other participants or third persons within the deadlines and in accordance with the procedure stipulated in legislative acts and the foundation documents of the partnership, or to reduce its charter capital. During that period the distribution of net income and also voting in the supreme governing body shall be carried out without taking into account the share acquired by the limited liability partnership.
6. The shares in the charter capital of a limited liability partnership shall be transferred to the inheritors of citizens and to the legal successors of legal entities which are participants in partnership, unless the foundation documents of the partnership stipulate that such a transfer is permitted only with the consent of the other participants of the partnership. Refusal to accept the transfer of a share shall entail the obligation of the partnership to pay to the inheritors (legal successors) of the participant its actual value or to issue to them in kind the assets worth the same value, in accordance with the procedure and on the conditions stipulated in legislative acts and in the foundation documents of the partnership.
Legislative acts may stipulate special considerations in the transfer of a share to the legal successors of legal entities.
Footnote. Article 80 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154; dated March 2, 1998 No. 211; dated August 7, 2007 No. 321 (shall be enforced from the date of its official publication); dated 21.04.2016 № 504-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 81. Additional Contributions by the Participants of a Limited Liability Partnership
Unless the charter of a limited liability partnership provides otherwise, the general meeting of its participants may take a decision on making by the participants of additional contributions to the partnership's property. A decision shall be adopted by a majority of three quarters of votes of all participants of the partnership.
Footnote. Article 81 is in the wording of the Law of the Republic of Kazakhstan dated April 22, 1998 No. 221.
Article 82. Forced Purchase of a Share from a Participants of a Limited Liability Partnership
In the event of a breach of the obligations of a limited liability partnership's shareholder to the partnership established by the legislative acts or constituent documents, the partnership, in accordance with the decision of the General Meeting of Shareholders, has the right to demand the compulsory redemption of the share of such shareholder in accordance with the procedure established by the Law of the Republic of Kazakhstan "On Limited Liability Companies and Additional Liability Companies".
Footnote. Article 82 is in the wording of the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated 21.01.2019 № 217-VI (shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 83. Imposition of a Claim upon the Share of a Participant in a Limited Liability Partnership
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 who is a participant.
Footnote. Article 83 as amended by the Law of the Republic of Kazakhstan dated March 2 , 1998 No. 211.
5. Partnerships with Additional Liability
Article 84. Basic Provisions Concerning the Partnership with Additional Liability
1. A partnership, which participants are liable for its obligations with their contributions to the charter capital, 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 shall be recognize as a partnership with the additional liability.
2. A maximum amount of the liability of the participants shall be stipulated in its foundation documents charter.
In the case of bankruptcy of one of the participants, his (her) liability for the obligations of the partnership shall be spread amongst other participants in proportion to their contributions, unless a different procedure of distribution of the liability is stipulated in foundation documents.
3. To an additional liability partnership the rules of this code shall be applied concerning limited liability partnerships, unless otherwise stipulated in this Article.
Footnote. Article 84 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154; dated April 22, 1998 No. 221.
III. JOINT-STOCK COMPANY
Footnote. Subsection 6 should be considered as the Part III by the Law of the Republic of Kazakhstan dated July 10, 1998 No. 282.
Article 85. Definition of a Joint-Stock Company
1. A legal entity which issues shares for the purposes of raising funds for the performance of its activities shall be recognized as a joint-stock company. The shareholders of a joint-stock company shall not be liable for its obligations, and they shall bear the risk of losses associated with the company's business, within the limits of value of the shares they hold, except for the cases provided for by legislative acts.
2. A joint-stock company shall possess the assets which are separate from the assets of its participants, shall be liable for its obligations within the limits of its property and it shall not bear any liability for the obligations of its participants.
3. A 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, unless it is otherwise stipulated in legislative acts.
4. The legal status of a joint-stock company, the rights and obligations of the shareholders shall be determined by legislative acts in accordance with this Code. Special considerations with regard to the legal status of joint-stock companies which are created by way of privatizing state-owned enterprises, shall be determined in legislation.
5. Non-commercial organizations may be created in a form of the joint-stock company in the cases provided for by legislation.
Footnote. Article 85 as amended by the Laws of the Republic of Kazakhstan dated 19.06.1997 No. 134, dated 11.07.1997 No. 154, dated 02.03.1998 No. 211, dated 10.07.1998 No. 282, dated 13.10.2003 No. 486, dated 28.12.2011 No. 524 - IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 86. Open and Closed Joint-Stock Companies
Article 86 is excluded by the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416.
Article 87. Foundation Documents of a Joint-Stock Company
1. The foundation agreement (resolution of the only founder) and the charter shall be the foundation documents of a joint-stock company.
The foundation documents of the company must contain the information specified in this Code and other legislative acts of the Republic of Kazakhstan.
The foundation documents of a joint-stock company shall be subject to notarization. 2. The Operation of the foundation agreement (decisions of the sole founder) shall cease
from the date of state registration of the shares. 3. The procedure of the confirmation of the charter of a joint-stock company shall be
approved by the legislative acts of the Republic of Kazakhstan. Footnote. Article 87 the new wording is in accordance with the Law of the Republic of
Kazakhstan dated May 16, 2003 No. 416.
Article 88. Charter Capital of a Joint-Stock Company
Lower limit and the procedure for the formation of the charter capital of a joint-stock company, as well as the procedure of its expansion shall be defined by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 88 is in the wording of the Law of the Republic of Kazakhstan dated July 10, 1998 No. 282. The new wording is in accordance with the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416. Amended dated July 8, 2005 No. 72 (the order of enforcement see Art. 2).
Article 89. Expansion of the Authorized and Issued (Paid) Charter Capital
(Article 89 is excluded by the Law of the Republic of Kazakhstan dated May 16, 2003 No . 416)
Article 90. Reduction of the Authorized and Issued (Paid) Charter Capital
(Article 90 is excluded by the Law of the Republic of Kazakhstan dated May 16, 2003 No . 416)
Article 91. Issue and Distribution of Securities
1. Thes of securities to be issued by joint-stock companies shall be defined by the legislative acts.
2. The procedure of state registration of authorized shares issue and their placing shall be defined according with the legislative acts of the Republic of Kazakhstan.
3. Joint-stock companies shall have the right to issue secured bonds and unsecured bonds, except for the cases provided by the legislative acts of the Republic of Kazakhstan. Joint-stock company shall have the right to issue coupon and discount bonds. The terms and the procedure for issuing bonds shall be defined by legislation concerning the securities market.
4. The form, method and the procedure for payment of income on securities shall be defined in the charters of joint stock companies or in prospectuses of issues (terms of issues) of securities subject to special considerations provided for by legislative acts.
5. A joint-stock company shall not have the right to pay dividends on company shares: 1) when its owned capital is negative or when its owned capital becomes negative in the
result of paying dividends on its shares; 2) if it meets the signs of insolvency or insolvency in accordance with the legislation of
the Republic of Kazakhstan on rehabilitation and bankruptcy, or these signs will appear in the partnership as a result of paying dividends on its shares.
Legislative acts of the Republic of Kazakhstan may specify other circumstances prohibiting payment of dividends on ordinary shares, and issuing of debentures by joint-stock companies.
6. A joint-stock company shall have the right to issue derivative securities, options and convertible securities in accordance with the procedure defined by legislation.
Footnote. Article 91 is in the wording of the Law of the Republic of Kazakhstan dated 10.07.1998 No. 282; amended by the Law of the Republic of Kazakhstan dated 16.05.2003 No. 416; dated 20.02.2006 No. 127 (the order of enforcement see Art. 2); dated 19.02.2007 No. 230 (the order of enforcement see Art. 2); dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 92. Managing a Joint-Stock Company
1. The general meeting of the shareholders of a joint-stock company shall be its supreme body.
2. The exclusive authority of the general meeting of shareholders shall be defined in legislative acts.
3. The taking of decisions on the issues comprised by the exclusive authority of the general meeting of shareholders, may not be delegated to other bodies of the joint-stock company.
4. A board of directors shall be formed in a joint-stock company, which shall exercise the general guidance of the company's business, except for deciding on the issues conferred by this Code, legislative acts and the company's charter, to the exclusive authority of the general meeting of shareholders. The issues which are conferred by this Code, legislative acts and the joint-company's charter to the exclusive authority of the board of directors, may not be delegated to the executive body of the joint-stock company to be decided on.
5. The executive body of a joint-stock company may be a collective body (board) or (and) a personal 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 board of directors and the general meeting of the shareholders.
The authority of the executive body of a joint-stock company shall include the deciding on all the issues which do not constitute the exclusive authority of any other governing bodies of the company which is determined by legislation or by the foundation documents.
6. Other bodies may be formed by a joint-stock company in accordance with legislative acts.
6-1. In cases when a joint-stock company is declared bankrupt or the rehabilitation procedure is applied and the temporary or bankrupt or rehabilitation manager is appointed in accordance with the procedure established by law, all powers to manage it are transferred to the temporary or bankrupt or rehabilitation manager, respectively.
7. The authority 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 by legislation in accordance with this Code and by the foundation documents.
8. (is excluded) Footnote. Article 92 as amended by the Law of the Republic of Kazakhstan dated July 11,
1997 No. 154; dated March 2, 1998 No. 211; dated July 10, 1998 No. 282; dated May 16, 2003 No. 416; dated 28.12.2011 No. 524-IV (shall be enforced upon expiry of ten calendar day after its first official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 93. Reorganization and Liquidation of a Joint-Stock Company
1. A joint-stock company may be reorganized or liquidated upon the decision of the shareholders meeting. Any other grounds and the procedure for reorganization and liquidation of a joint-stock company shall be determined in this Code and any other legislative acts.
2. A joint-stock company has the right to be transformed into an economic partnership, a production cooperative or an autonomous education organization in accordance with the Law of the Republic of Kazakhstan "On the Status of Nazarbayev University", "Nazarbayev Intellectual Schools" and "Nazarbayev Foundation", as well as into an autonomous cluster fund in accordance with the Law of the Republic of Kazakhstan "On Innovative Cluster "Park of Innovative Technologies".
Footnote. Article 93 is in the wording of the Law of the Republic of Kazakhstan dated 15.07.1996 No. 30; as amended by the Laws of the Republic of Kazakhstan dated 16.05.2003 No. 416; dated 19.01.2011 No 395-IV (shall be enforced upon expiry of ten calendar day after its first official publication); dated 10.06.2014 № 208-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
IV. Subsidiary Organization and Related Joint-Stock Company
Footnote. Sub-section seven should be considered as the part of IV by the Law of the Republic of Kazakhstan dated July 10, 1998 No. 282.
Article 94. Subsidiary Organization
1. A subsidiary is a legal entity whose decisions may be determined by another legal entity (hereinafter referred to as the main organization) on the basis of the prevailing share of participation in the authorized capital or the contract concluded between them, or otherwise.
2. A subsidiary organization shall not be liable for the debts of its principal organization. The holding organization, which in accordance with an agreement (or otherwise) with the
subsidiary organization, has the right to give necessary instructions to the subsidiary company , is liable together with the subsidiary company on the transactions which are concluded by the subsidiary company in accordance with such instructions.
In the case of bankruptcy of a subsidiary organization, due to a fault of the principal organization, the latter shall bear subsidiary liability with regard to its debts.
A subsidiary organization may not purchase shares of the main organization, except for financial organizations that have the right to own shares of the main organization in the amount of not more than ten percent of the voting shares of such an organization.
3. The participants of a subsidiary organization shall have the right to demand from the principal organization of the compensation of losses caused by its fault to the subsidiary organization, unless it is otherwise established by legislative acts.
4. Special considerations with regard to the status of subsidiary organizations, which are not specified in this Article, shall be defined by legislative acts.
Footnote. Article 94 is in the wording of the Law of the Republic of Kazakhstan dated July 10, 1998 No. 282. Amended by the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416; dated 22.04.2015 № 308-V (shall be enforced upon expiry of ten calendar days
after the day its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 95. Related Joint-Stock Company
1. A joint-stock company shall be recognized as related if the other (participating, majority) legal entity has more than 20% of its voting shares.
2. Is excluded by the Law of the Republic of Kazakhstan dated 28.12.2011 No. 524-IV ( shall be enforced upon expiry of ten calendar day after its first official publication).
3. Is excluded by the Law of the Republic of Kazakhstan dated 28.12.2011 No. 524-IV ( shall be enforced upon expiry of ten calendar day after its first official publication).
4. Special considerations concerning related joint-stock companies and joint-stock companies mutually participating in issued (paid-up) charter capitals of each other's, which are not provided for by this Article, shall be defined by legislative acts.
5. The participating (prevailing) legal entity is obliged to publish information on the acquisition of more than twenty percent of the voting shares of the joint-stock company in the procedure, established by laws.
Footnote. Article 95 as amended by the Law of the Republic of Kazakhstan dated 11.07.1997 No. 154; dated 10.07.1998 No. 282; dated 16.05.2003 No. 416; dated 28.12.2011 No. 524-IV (shall be enforced upon expiry of ten calendar day after its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
V. Production Co-operative
Article 96. General Provisions Concerning Production Co-operatives
1. A voluntary association of citizens on the basis of the membership for joint entrepreneurial activities, which is based on personal labor participation and the co-operation by the members of their property contributions, shall be recognized as production co-operatives.
2. Members of a co-operative must be not less than two. 3. Members of a production co-operative shall bear a complimentary (subsidiary) liability
on the obligations of the co-operative in the amounts in accordance with the procedure stipulated by the law concerning production co-operatives.
4. The legal status of production co-operatives and its members shall be determined in accordance with this Code and legislative acts.
5. Legal status of an agricultural cooperative established in the form of a production cooperative, as well as the legal status, rights and duties of its members are determined by this
Code and other laws of the Republic of Kazakhstan, with the exception of cases stipulated by the Law of the Republic of Kazakhstan "On Agricultural cooperatives".
Footnote. Article 96 as amended by the Law of the Republic of Kazakhstan dated March 2 , 1998 No. 211; dated 29.10.2015 № 373-V (shall be enforced from 01.01.2016).
Article 97. Charter of a Production Co-operative
The charter of a production co-operative must contain aside information indicated in paragraph 5 of Article 41 of this Code, the provisions concerning the size of unit shares of the co-operative’s members; concerning the composition and the procedure for making contributions by the co-operative members and their liability for violating obligations associated with the making of contributions; concerning the nature and the procedure for the labor participation of its members in the activities of the co-operative, and their liability for violating the obligations with regard to the personal labor participation; concerning the procedure for the distribution of losses net income of the co-operative; concerning the membership and the authority of the governing bodies of the co-operative and the procedure for their adoption of decisions, in particular concerning the issues on which decisions are adopted unanimously or by a qualified majority of votes.
Footnote. Article 97 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154; dated March 2, 1998 No. 211.
Article 98. Property of a production co-operative
1. Property which is in the ownership of a production co-operative, shall be divided into unit shares of its members in proportion to their contributions, unless it is otherwise stipulated in the charter of a given co-operative.
2. Net income of a co-operative shall be distributed amongst its members in accordance with their labor participation, unless any other procedure is stipulated in the charter of the co-operative.
3. In case of liquidation of a production co-operative, or a member exiting the co-operative, that member shall have the right to appropriation of his unit share.
Footnote. Article 98 as amended by the Laws of the Republic of Kazakhstan dated July 11 , 1997 No. 154; dated March 2, 1998 No. 211.
Article 99. Managing Production Co-operatives
1. The supreme body of a production cooperative is the general meeting of its members. A supervisory board may be set up in a production cooperative, which monitors the
activities of the executive body of the cooperative. Members of the supervisory board are not entitled to act on behalf of the production cooperative.
The executive body of the cooperative is the board or a chairman of the cooperative. The executive body carries out the current management of the cooperative and is
accountable to the supervisory board and the general meeting of members of the cooperative. Members of the cooperative may only be members of the supervisory board and the
management board of the production cooperative. A member of the cooperative may not simultaneously be a member of the supervisory board and a member of the board (a chairman of the cooperative).
2. The authority of the governing bodies of a productionco-operative and the procedure for its adoption of decisions as well as their acting on behalf of the co-operative shall be determined in 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 productionco-operative:
1) alteration of the charter of the co-operative; 2) formation of the executive, audit bodies and supervisory council, and the removal of
their members; 3) acceptance and exclusion of the members of the co-operative. 4) approval of financial statements of the co-operative and distribution of its net income; 5) the decision concerning the reorganization or liquidation of the co-operative. Also, any other issues may be referred by legislative acts and the foundation documents to
the exclusive authority of the general meeting. 3-1. In cases when the production cooperative is declared bankrupt or the rehabilitation
procedure is applied and a temporary or bankrupt or rehabilitation manager is appointed in accordance with the procedure established by law, all powers to manage it are transferred to the temporary or bankrupt or rehabilitation manager, respectively.
4. When a decision is adopted by the general meeting a member of a co-operative shall have one vote.
Footnote. Article 99 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154; dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 100. Cessation of Membership in a Production Co-operative
1. A member of a production co-operative shall have the right to leave the co-operative at his (her) discretion. In that case, he (she) must be paid or given his (her) share and also he ( she) must be issued any other benefits, which are stipulated in the charter.
The return of the share or any other assets to the co-operative member who is leaving shall be carried out upon expiry reporting period and the approval of the financial statements of the co-operative.
2. A member of a production co-operative may be excluded from the co-operative upon the decision of the general meeting in the case of a failure to execute or improper execution of the duties which are delegated to him (her) by the charter of the co-operative and also in any other cases which are stipulated in legislative acts and the foundation documents.
The exclusion from membership of a production co-operative may be challenged in the court.
A member of a production co-operative may be excluded from it upon the decision of the General meeting in relation to the membership in a similar co-operative.
A member of a production co-operative who is excluded from it shall have the right to get the share and any other benefits which are stipulated in the charter of the co-operative, in accordance with the paragraph 1 of this Article.
3. A member of a production co-operative shall have the right to transfer his (her) share or its part to any other co-operative member, unless otherwise stipulated in legislative acts and the foundation documents.
The transfer of a share (part thereof) to a citizen, who is not a member of the production co-operative, shall only be allowed with the consent of the co-operative. In that case, the other members of the cooperative shall exercise the pre-emption right in the purchase of such a share (its part).
4. In case of death of a member of a production co-operative, his (her) heirs may be accepted into the cooperative as members, unless it is otherwise stipulated in the charter of the co-operative. In the case of a refusal of an heir of the deceased co-operative member to enter the co-operative, or a refusal of the cooperative to accept an heir, he (she) shall be paid a share in the property proportionate to the share of the deceased co-operative member, as well as a part of the co-operative’s net income due to the deceased, and remuneration for personal labor participation in the activity of the co-operative.
5. The claims against the share of a production co-operative member related to his (her) personal debts shall be allowed only in the case of the shortage of his (her) other assets for covering such debts, in accordance with the procedure stipulated in legislative acts and the foundation documents of the co-operative.
Footnote. Article 100 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated August 7, 2007 No. 321 (shall be enforced from the date of its official publication).
Article 101. Reorganization and Liquidation of a Production Co-operative
1. A production co-operative may be voluntarily reorganized or liquidated upon the resolution of the General meeting of its members.
Any other grounds and the procedure for reorganization and liquidation of a production co-operative shall be determined in this Code and other legislative acts.
2. A production co-operative, upon the unanimous decision of its members, may be transformed into a business partnership.
VI. State Enterprise
Article 102. Fundamental Provisions Concerning the State Enterprise
1. The following shall be referred to state-owned enterprises: 1) those based on the economic management; 2) those based on the right to operational management (public enterprise). 2. The assets of a state-owned enterprise shall be indivisible and it may not be distributed
by contributions (shares, unit shares), including among the workers of the enterprise. 3. The commercial name of state-owned enterprises must contain the indication of the
ownership of its assets. Note RCLI! This edition of paragraph 4 is valid dated 01.01.2018 for cities of district importance,
villages, settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
4. A state enterprise shall be established, liquidated and reorganized in accordance with the laws of the Republic of Kazakhstan.
Note RCLI! Part one of point 5 is valid dated 01.01.2018 for cities of district importance, villages,
settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
5. The body of a state enterprise shall be a director, who shall be appointed in accordance with the procedure established by the laws of the Republic of Kazakhstan.
5-1. In cases when a state enterprise is declared bankrupt or the rehabilitation procedure is applied and a temporary or bankrupt or rehabilitation manager is appointed in accordance with the procedure established by law, all powers to manage it are transferred to the temporary or bankrupt or rehabilitation manager, respectively.
6. (Is excluded). 7. The status of a state enterprise and a public enterprise shall be determined by this Code
and other legislative acts.
Footnote. Article 102 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 11.07.2017 № 90-VI (the order of enactment see paras. 1), p.1 of article 2).
Article 103. Enterprise Based on the Economic Management
1. The charter approved by the foundation party, shall be the foundation document of an enterprise based on the economic management.
2. An enterprise which is based on the economic management shall be liable on its obligations with all the property belonging to it.
An enterprise which is based on the economic management shall not be liable upon the obligations of the state.
The state shall not be liable for the obligations of an enterprise based on the economic management, except for the cases, stipulated by this Code and other legislative acts.
Footnote. Article 103 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 104. A Public Enterprise
1. An enterprise which possesses the state-owned assets under the right to operational management shall be a public enterprise.
Note RCLI! This edition of paragraph 2 is valid dated 01.01.2018 for cities of district importance,
villages, settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
2. The state enterprise shall be established by the decision of the Government of the Republic of Kazakhstan or the local executive body or the akim's office of the city of district significance, village, settlement, rural district in accordance with the laws of the Republic of Kazakhstan.
3. The charter approved by the foundation party shall be the foundation document of the public enterprise.
4. The commercial name of an enterprise based on the right to operational management, must contain an indication that the enterprise is public.
5. Business activities of a public enterprise shall be determined by its aims and objectives which are stipulated in its charter.
6. The Republic of Kazakhstan or the administrative and territorial unit shall bear the subsidiary liability upon the obligations of public enterprises. With regard to contractual obligations the liability shall arise in accordance with the procedure as established by legislative acts concerning state owned enterprises.
Footnote. Article 104 as amended by the Laws of the Republic of Kazakhstan dated 16.12.1998 No. 320; 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication); dated 11.07.2017 № 90-VI (the order of enactment see paras. 1), paragraph 1 of Article 2).
VII. Non-Commercial Organization
Article 105. An Institution
1. An organization created and financed by its founder for the performance of managerial, social and cultural or any other functions of non-commercial nature, shall be recognized as institution.
Note RCLI! This edition of paragraph 2 is valid dated 01.01.2018 for cities of district importance,
villages, settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
2. A state institution is an institution established by the state in accordance with the Constitution of the Republic of Kazakhstan and the laws of the Republic of Kazakhstan or legal acts of the President of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan and local executive bodies of regions, cities of national importance, the capital, districts, cities of regional importance, as well as the apparatuses of the akims of cities of district importance, villages, settlements, rural districts, and contained only at the expense of the budget or budget (cost estimate) of the National Bank of the Republic of Kazakhstan, if additional sources of financing shall not be established by the laws of the Republic of Kazakhstan.
3. Assumption of the contractual obligations shall be carried out in accordance with the Budget Code of the Republic of Kazakhstan.
4. Legal rights of the enterprises shall be specified by this Code, legislative acts of the Republic of Kazakhstan.
Footnote. Article 105 is in the wording of the Law of the Republic of Kazakhstan dated 01.03.2001 No. 414-IV (shall be enforced from the date of its first official publication); with
the change introduced by the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI ( the order of implementation, see paras. 1), paragraph 1 of Article 2).
Article 106. A Pubic Association
1. In the Republic of Kazakhstan political parties, trade unions and other associations of citizens created on a voluntary basis for the attainment by them of the goals in common which do not contradict legislation, shall be recognized as public associations.
Creation and participation features of public associations for individuals shall be specified by the legislative acts of the Republic of Kazakhstan.
The participants (members) of public associations shall not have the right to the assets which are transferred to those associations, including the membership fees. They shall not be liable for the obligations of the public associations in which they participate as their members, and the indicated associations shall not be liable for the obligations of their members.
2 - 6. They are excluded by the Law of the Republic of Kazakhstan dated 02.03.1998 No. 211.
7. 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 stipulated in its charter.
Assets of a public association liquidated upon a court decision shall be used in accordance with this Code or other legislative acts.
8. The legal status of public associations shall be determined by legislative acts in accordance with this Code.
Footnote. Article 106 as amended by the Decree of the President of the Republic of Kazakhstan having the force of the Law dated 05.10.1995 No. 2489; by the Laws of the Republic of Kazakhstan dated 11.07.1997 No. 154; dated 02.03.1998 No. 211; dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2); dated 12.01.2012 No. 537-IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
Article 107. A Public Foundation
1. A non-commercial organization without any membership, which is founded by citizens and (or) legal entities on the basis of their voluntary property contributions, and which pursues social, educational, and any other publicly-useful purposes shall be recognized as a public foundation.
2. A public foundation shall be a legal entity and in the Civil rights turnover it shall be represented by the bodies of the foundation, it shall have an independent balance-sheet and the bank account.
3. The assets which are transferred to a public foundation by its founders shall be property of the foundation.
Founders of a foundation shall have not property rights with regard to the property of a given public foundation.
4. Financial source of the fund is the money, as well as other assets of the founders, voluntary donations and other legal inflows.
5. The procedure for managing a public foundation and the procedure for the formation of its bodies shall be determined by its charter as approved by the founder.
The charter of a public foundation, aside from the information contained in paragraph 5 of Article 41 of this Code, must contain information about the institutions of the foundation, on the procedure for the appointment of the officials of the foundation and their dismissal, the allocation of the foundation property in the event of its liquidation.
6. The foundation shall be obliged to publish in official publications annually the reports 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 attaining its objectives and the probability of obtaining the required assets is not realistic;
2) where the purposes of a foundation may not be reached and appropriate changes of foundation's objectives may not be made;
3) in the event that the foundations in its activities deviates from the objectives stipulated in its charter;
4) in any other cases which are stipulated in legislative acts or the foundation documents. 8. The assets which remain after the liquidation of a public association shall be used for
the purposes contemplated in its charter. Footnote. Article 107 as amended by the Law of the Republic of Kazakhstan dated
27.04.2012 No. 15-V (shall be enforced upon expiry of ten calendar days after its first official publication); as amended by the Law of the Republic of Kazakhstan dated 16.11.2015 № 403- V (shall be enforced upon expiry of ten calendar days after the day its first official publication ).
Article 108. Consumer Co-operatives
1. A consumer co-operative shall be recognized as a voluntary association of citizens on the basis of the membership, for the satisfaction of their financial and or any other needs, which is implemented by way of its members uniting their property (share) contributions.
In the cases provided by the legislative acts, legal entities may enter the consumer co-operative.
2. Members of a consumer co-operative shall be obliged to cover within three months after the approval of the annual balance-sheet the formed losses, by way of additional
contributions. In the case of a failure to execute this obligation, the co-operative may be liquidated in a judicial procedure upon demand of the creditors.
Members of a consumer co-operative shall jointly bear a subsidiary liability with regard to its obligations, within the limits of the unpaid amount of the additional contribution of the co-operative members.
3. The charter of the consumer co-operative must contain, aside from the information indicated in the paragraph 5 of Article 41 of this Code, the conditions with regard to the size of the co-operative member shares; the composition and procedure for contribution of shares by the co-operative members and their responsibility for the violation the obligations associated with the contribution of the shares; concerning the composition and the authority of the governing bodies the co-operative and the procedure for adopting by them of the resolutions, including on the issues, the resolutions on which are to be adopted unanimously or by a qualified majority of votes; concerning the procedure for the compensation by the members of the losses incurred by the co-operative.
4. Income received by a consumer co-operative may not be distributed amongst its members and it shall be used on the charter purposes.
5. In the case of the liquidation of a consumer co-operative, or in the case of departure from it of a co-operative member, he (she) shall have the right to appropriate his (her) share in the assets of the consumer cooperative in proportion to his (her) share. In the case of death of a co-operative member, his (her) heirs shall have the priority right to be accepted as members of the co-operative, unless otherwise stipulated in the co-operative charter. In the latter case the co-operative shall pay to the heirs the share in the property of the consumer co-operative, in proportion to his (her) share.
6. The legal status of the consumer co-operative, and also the rights and obligations of its members, shall be determined by legislative acts in accordance with this Code.
7. Is excluded by the Law of the Republic of Kazakhstan dated 29.10.2015 № 373-V ( shall be enforced from 01.01.2016).
8. Features of the consumer cooperatives - mutual insurance companies are determined by legislative acts of the Republic of Kazakhstan.
Footnote. Paragraph 1 of Article 108 is supplemented with the paragraph 2 by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated July 5, 2006 No. 164 (the order of enforcement see Art. 2); dated 29.10.2015 № 373-V (shall be enforced from 01.01.2016).
Article 109. Religious Association
1. A voluntary association of citizens who unite in accordance with the procedure stipulated in legislative acts, on the basis of their common interests for satisfying their spiritual needs, shall be recognized as religious associations.
2. (Is excluded) . 3. Religious associations in the Republic of Kazakhstan, which have governing centers
beyond the boundaries of the Republic, shall be subject to registration at the bodies of justice. Charters (articles) of the governing centers may be used as a basis of charter (articles) of such religious associations, if they do not contradict legislation of the Republic of Kazakhstan.
4 - 8. (They are excluded). 9. A religious association shall have the right to own the assets which are acquired or
created by it at the expense of its own resources, as well as those donated by citizens, or organizations, or those transferred by the State, and acquired on any other grounds, which do not contradict legislative acts.
10. The participants (members) of a religious association shall not retain rights with regard to the assets which are transferred by them to that organization, including their membership fees. They shall not be liable for the obligations of the religious association and the religious association shall not be liable for the obligations of its members.
11. Special considerations concerning the legal status of religious associations shall be determined in accordance with this Code and legislative acts of the Republic of Kazakhstan.
Footnote. Article 109 as amended by the Decree of the President of the Republic of Kazakhstan having the force of the Law dated October 5, 1995 No. 2489. Paragraphs 2, 4-8 are excluded by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 110. Amalgamation of individual entrepreneurs and (or) legal entities in the form of an association (union)
1. Individual entrepreneurs and legal entities may create associations (unions) in order to coordinate their entrepreneurial activities, and also to provide and protect their common interests.
Creation and participation features of legal entity associations (unions), which carry out their activity in the financial trade, shall be specified by the legislative acts of the Republic of Kazakhstan.
2. Public associations and any other non-commercial organizations, including institutions, may voluntarily unite into associations (unions) of those organizations.
3. Associations (unions) shall be non-commercial organizations. 4. Members of an association (union) shall retain their independence and the rights of
legal entities. 5. An association (union) is not responsible for the obligations of its members, unless
otherwise provided by the laws of the Republic of Kazakhstan and the constituent documents. Members of the association (union) bear subsidiary responsibility for its obligations in the amount and in the manner prescribed by the constituent documents of the association (union), unless otherwise stipulated by the laws of the Republic of Kazakhstan.
Footnote. Article 110 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated May 16, 2003 No. 416; dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 12.11.2015 № 391-V (shall be enforced upon expiry of six months after the day its first official publication).
Paragraph 3. Participation of the State and Administrative-Territorial Units In Relations Regulated by Civil Legislation
Article 111. Participation of the Republic of Kazakhstan in the Civil Law Relations
1. The Republic of Kazakhstan shall act in relations which are regulated by the civil legislation on the basis of principles which are equal with any other participants in those relations.
2. The public bodies of the Republic of Kazakhstan within the bounds of their authority established by legislative acts, regulations or any other acts which determine the status of those bodies, may by their actions acquire and exercise property and personal non-property rights and obligations, may act in the court on behalf of the Republic of Kazakhstan.
Any other State bodies, legal entities and citizens may act on behalf of the Republic of Kazakhstan in the cases and in accordance with the procedure stipulated in legislation, upon its special mandate.
3. The civil rights disputes in which the Republic of Kazakhstan is a participant shall be settled by courts.
Footnote. Article 111 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from that of its official publication).
Article 112. Participation of the Administrative and Territorial Units in the Civil Law Relations
1. An administrative and territorial unit shall act in the relations regulated by the civil rights legislation on principles equal to those by which any other participants of those relations act.
Note RCLI! Part one of point 2 is valid dated 01.01.2018 for cities of district importance, villages,
settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
2. On behalf of an administrative-territorial unit may acquire and exercise property and personal non-property rights and obligations, act in court, local representative and executive
bodies, as well as the apparatuses of the akims of cities of district significance, villages, settlements, rural districts within their competence, established by the laws of the Republic of Kazakhstan, regulations or other acts determining the status of these bodies.
In the cases and in accordance with the procedure stipulated in legislation, and upon special instructions, local state bodies, legal entities and citizens may act on behalf of an administrative and territorial unit.
3. In the cases determined by legislation, an administrative and territorial unit may act in civil rights relations on behalf of the State.
4. The provisions of this Code concerning the participation, respectively, of the State and its bodies in relations regulated by civil rights legislation shall apply to administrative and territorial units and their bodies, unless otherwise stipulated by legislation.
5. Civil law rights disputes with the participation of an administrative and territorial unit shall be settled by the courts.
Footnote. Article 112 as amended by the Law of the Republic of Kazakhstan No. 90-VI dated 11.07.2017 (for the procedure of implementation, see paragraphs 1 and 1 of Article 2).
Article 113. Imposition of Claims for the Obligations of the Republic of Kazakhstan and Administrative and Territorial Units
1. The Republic of Kazakhstan shall be liable for its obligations with the property of the State treasury, while an administrative and territorial unit shall be liable for its obligations with the property of the local treasury.
2. The Republic of Kazakhstan and the administrative and territorial units shall not be liable for the obligations of one another and also for the obligations of citizens and legal entities, while citizens and legal entities shall not be liable for the obligations of the Republic of Kazakhstan and administrative and territorial units except for the cases stipulated by this Code and legislative acts.
Article 114. Application of the Provisions Concerning Legal Entities to the State and to Administrative and Territorial Units
The provisions which determine the participation of legal entities in the relations regulated by civil legislation shall apply to the State and to administrative and territorial units, unless otherwise ensues from legislative acts.
Chapter 3. Objects in Civil Rights Paragraph 1. General Provisions
Article 115.s of Objects in Civil Rights
1. The property and the personal non-property privileges and rights may be objects in civil rights.
2. Objects, money, including foreign currency, securities, work, services, and the objectified results of creative and intellectual activities, commercial names, trademarks and any other means of individualization of products, property rights and any other assets, shall be recognized as property privileges and rights (property).
2-1. Legal regime of objects or property rights shall be applied respectively to the money and the rights (claims) for money liability (rights of claim for payment of money).
3. Life, health, the 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 an author, the right to inviolability of production and any other intangible privileges and rights shall be referred to the personal non-property privileges and rights.
Footnote. Article 115 as amended by the Laws of the Republic of Kazakhstan dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); dated 10.12.2008 No. 101-IV (shall be enforced from 01.01.2009).
Article 116. Turnover Capacity of the Objects of Civil Rights
1. Objects of the civil rights may be freely alienated or transferred from one person to another in the course of the universal legal successorship (inheritance, reorganization of a legal entity) or by any other method, unless they are exempt from circulation or restricted in their turnover.
2. Types of property, the alienation of which is not allowed (withdrawn from circulation), should be directly specified in the laws.
3. Types of property that can belong only to certain participants in the turnover or the acquisition or alienation of which is allowed by special permission (not fully tradable) are determined by legislation.
4. The personal non-property privileges and rights shall be unalienable and non-transferable by any other method, except for the cases which are established by legislative acts.
Footnote. Article 116 as amended by the Law of the Republic of Kazakhstan 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 117. Movable and Immovable Assets
1. Immovable property (immovable assets, real estate) includes the following: land plots, buildings, structures, perennial plantations, and other property, which is firmly associated with their physical location, i.e. entities for which the transportation of which is impossible without infliction of disproportional damage to their designation.
Apartments and other accommodations, as well as non-residential premises, which are part of a condominium, shall be recognized as independent immovable property object (type), if they are in the individual (separate) property.
2. Also, air and sea vessels, vessels of domestic water travel, vessels of river and sea sailing, and cosmic facilities, shall be equated to immovable objects which are subject to state registration. Any other assets may be recognized as immovable objects by legislative acts.
Provisions of this Code and other legislative acts, which regulate relations connected to the immovable things, shall be applied to the things specified in this paragraph in the case explicitly provided by the legislative acts of the Republic of Kazakhstan.
3. Assets which are not recognized as immovable, including money and securities, shall be recognized as movable assets. The registration of rights in relation to movable assets shall not be required, except for the cases stipulated in legislative acts.
Footnote. Article 117 is in the wording of the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication), as amended by the Law of the Republic of Kazakhstan dated 22.06.2012 No. 21-V (shall be enforced upon expiry of ten calendar days after its first official publication ).
Article 118. State Registration of Rights to Immovable Properties
1. Rise, change and termination of rights (burden of right) to immovable properties shall be subject to the State registration in the cases provided by this Code and the Law of the Republic of Kazakhstan "On Registration of Rights to Immovable Property and of Transactions Therein".
Other objects of State registration related to the immovable properties shall be specified by the Law of the Republic of Kazakhstan Concerning the Registration of Rights to Immovable Property and of Transactions Therein.
2. Rights (encumbrances of rights) to immovable property arise, change and terminate from the moment of state registration, unless otherwise established by this Code and the Law of the Republic of Kazakhstan "On state registration of rights to real estate." If registration is not denied, the moment of state registration is the moment of filing the application, and when electronic registration - the moment of confirmation of occurrence, change or termination of rights (encumbrances of rights) by the registering authority by sending notification of the registration.
3. The body which carries out the State registration of the rights to immovable properties shall be obliged to certify the effected registration, upon the petition of the title holder, by way of signing a document presented for registration.
4. State registration of the rights to immovable properties and of transactions therein shall be public. The body which carries out the registration shall be obliged to present the
information concerning the registered which to any person taking into account limitations specified by the Law of the Republic of Kazakhstan Concerning the Registration of Rights to Immovable Property and of Transactions Therein.
5. The refusal of State registration of the right to immovable properties or unmotivated evasion from registration may be challenged in court.
6. The procedure of state registration shall be established in accordance with this Code, and by the law of the Republic of Kazakhstan Concerning the Registration of Rights to Immovable Property and of Transactions Therein.
7. The procedure of the State registration of the air and sea vessels, vessels of domestic water travel, vessels of river and sea sailing, and cosmic facilities, as the objects equated to immovable property shall be regulated by the laws of the Republic of Kazakhstan in the sphere of use of air space and aviation activity, merchant shipping, inland water transport, cosmic activities.
Footnote. Article 118 is in the wording of the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); as amended by the Law of the Republic of Kazakhstan dated 06.01.2012 No. 529-IV (shall be enforced upon expiry of twenty one calendar days after its first official publication); dated 29.12.2014 № 269-V (shall be enforced from 01.01.2015).
Article 119. An Enterprise
1. A property complex which is used for carrying out entrepreneurial activities shall be recognized as an enterprise that is an object of rights.
2. As a property complex, an enterprise shall include all thes of assets which are intended for its operation, including buildings, installations, equipment, tools, raw materials, inventories, the right to a land plot, 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 otherwise stipulated in an agreement.
3. An enterprise as a whole, or a part thereof, may be an object in purchasing and selling, pledging, leasing and any other transactions which are related to the establishment, alteration or cessation of corporeal rights.
3-1. Features of the State registration of the rights to the immovable properties, component of the enterprise as the property complex shall be established by the Law of the Republic of Kazakhstan Concerning the Registration of Rights to Immovable Property and of Transactions Therein.
4. When debts are acquired as part of an enterprise recognized as a property complex, the rights of creditors shall be guaranteed in accordance with the procedure provided for by Article 48 of this Code.
Footnote. Article 119 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 120. Divisible and Indivisible property
1. Property may be divisible and indivisible. Divisible property shall be assets, parts whereof do not lose their designation (function) as
result of division. Indivisible property shall be property which may not be divided without changing its
economic designation (function), or which is not to be subdivided by virtue of a prescription in a legislative act.
2. Features of indivisible items as objects in law, shall be determined in legislation.
Article 121. Compound Items
1. When heterogeneous items form a single unit which permits the use in accordance with its designation, determined by the nature of their combination, they shall be deemed to be a single object (complex objects).
2. The effect of a transaction which is concluded with regard to a compound items, shall apply to all its constituent parts, unless an agreement provides otherwise.
Article 122. A Principal Item and its Accessory Components
An accessory, that is, an item designed to serve a main item and which is tied to it by joint economic designations, shall follow the purpose of the main item, unless legislation or agreement stipulate otherwise.
Article 123. Fruit, Production and Income
Income obtained as a result of using assets (fruit, production, income), shall belong to the person who uses those assets on a legal basis, unless it is otherwise stipulated in legislation or in the agreement concerning the use of that asset.
Article 124. Animals
General rules concerning objects shall apply to animals in so far as legislation does not stipulate otherwise.
Article 125. Intellectual Property
1. In cases and in accordance with the procedure stipulated in this Code and other legislative acts, an exclusive right of a citizen, or a legal entity shall be recognized with regard to the results of intellectual creative activities and to the ways of individualization of a legal entity, of the production by a private person or a legal entity, work performed by it or services rendered, which are equated thereto (commercial name, trade mark, service mark etc. ).
2. The use of the results of intellectual creative activity and means of individualization, which may be the object of exclusive rights (intellectual property), may be exercised by third parties only with the consent of the right holder, except for the cases provided for by legislative acts of the Republic of Kazakhstan.
Footnote. Article 125 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated 07.04.2015 № 300-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 126. Service and Commercial Secrets
1. Civil legislation shall protect information which constitutes a service or a commercial secret in a case where the information has actual or potential commercial value by virtue of its being unknown to third persons, if there is no access thereto on a legitimate basis and the possessor of the information makes efforts to protect its confidentiality.
2. Persons who by illicit methods obtain such information, and also employees who in spite of their service agreement, or counter-parties in spite of their civil rights agreement, divulge a service or a commercial secret, shall be obliged to compensate for the inflicted damage.
Article 127. Money (currency)
1. The Tenge shall be the monetary unit in the Republic of Kazakhstan. 2. The Tenge shall be the legal tender, which is obligatory for acceptance, in accordance
with its nominal value, in the entire territory of the Republic of Kazakhstan. 3. Payments in the territory of the Republic of Kazakhstan shall be carried out in the form
of cash payments and non-cash payments. 4. The cases, the procedure and the conditions for settlement in foreign currency in the
territory of the Republic of Kazakhstan shall be determined by legislation of the Republic of Kazakhstan.
Article 128. Currency Assets
1. Thes of assets which are recognized as currency assets and the procedure for transactions involving them, shall be determined by legislative acts.
2. The right to own currency assets shall be protected in the Republic of Kazakhstan on common principles.
Paragraph 1-1. Financial Instruments
Footnote. Section 3 is supplemented with the paragraph 1-1 in accordance with the Law of the Republic of Kazakhstan dated 10.12.2008 No. 101-IV (shall be enforced from 01.01.2009).
Article 128-1. Financial Instruments
1. Financial instrument - money, securities, including derivative securities, derivative financial instruments and other financial instruments, which simultaneously give rise to a financial asset for one person and a financial liability or an equity instrument for another person.
2. Financial asset - any asset that represents money, equity instrument of another person, contractual right to receive money or other financial asset from another person or to exchange financial assets or financial liabilities with another person on potentially beneficial terms, or such a contract, the settlement of which will be or may be made by the person's own equity instruments and which is a derivative instrument under which the person has or may have an obligation to receive a variable number of own equity instruments or a derivative that will or may be settled in any other way than by the exchange of a fixed amount of cash or another financial asset for a fixed number of the entity's own equity instruments.
3. Financial liability is any liability that represents a contractual obligation to deliver cash or another financial asset to another person or to exchange financial assets or financial liabilities with another person on potentially unfavourable terms, or a contract that will or may be settled by the entity's own equity instruments and that is a non-derivative instrument for which the entity has, or may have, an obligation to provide a variable number of its own equity instruments, or that is, or may be otherwise settled by exchanging a fixed amount of cash or another financial asset for a fixed number of the entity's own equity instruments.
4. Equity instrument shall be any contract, confirming the right for the residual claim on total assets of the organization, remaining after the holdback of all its obligations.
Footnote. Article 128-1 as amended by the Law of the Republic of Kazakhstan No. 166- VI dated. 02.07.2018 (shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 128-2. Derivative Financial Instruments
1. Derivative financial instrument shall be the contract, which cost depends on the value ( including the variation of the value) of underlying asset of the contract, foreseeing the conduction of the calculation on the current contract in the future.
2. The options, the futures, the swaps and other derivative financial instruments, which measure up the given features and which particularly represent the combination of the above listed derivative financial instruments shall refer to the derivative financial instruments.
3. The goods, the standardized consignments of goods, the securities, currency, the indices, the interest rate and other assets, having market value, the future event or circumstance, the derivative financial instruments shall be the underlying assets of the derivative financial instruments.
Article 128-3. The Option
1. The option shall be the derivative financial instruments, according to which one party ( option seller) sells to another party (option buyer) the right to buy or to sell the underlying asset on the stipulated price and on the settled terms in the future.
2. The option seller shall sell the option to the option buyer for a fee, referred to as premium. The settled terms of the option shall be regarded as the settlement of the following obliged terms: of the underlying asset, the total cost of the underlying asset (the sum to which the option is settled), the cost of the underlying asset (strike price), the option premium, the term of the option (validity period of the option), of the option.
3. The option shall be considered to be executed, if the option buyer reorganizes the purchased right.
Article 128-4. The Swap
The swap shall be the derivative financial instrument, according to which the parties agree to exchange the payments on the underlying assets or by the underlying assets on the settled terms in the future.
Article 128-5. The Forward
1. The forward shall be the derivative financial instrument, which buyer (or seller) undertakes an obligation upon the expiry of designated period to buy (or to sell) the underlying asset on the settled terms in the future.
2. Forward is occurred in the unorganized market.
Article 128-6. The Futures
The futures shall be the derivative financial instrument, tradable only in the organized market, which buyer (or seller) undertakes an obligation to buy (or to sell) the underlying
asset upon the expiry of designated period, on the standard terms, settled in the organized market.
Paragraph 2. Securities
Article 129. The Securities
1. A Security shall be the set of the appropriate records and other designations, which satisfy the property rights.
1-1. The securities may be debt and share. The debt securities shall be the securities, which prove the obligation of the emitter (
debtor) to pay the principal on the terms issue of the assets. The share security shall be the security, which proves the right of its owner for the
definite interest in estate in the cases, specified by the legislation of the Republic of Kazakhstan.
2. The assets, the obligations and others of the securities, determined in accordance with this Code and other legislative acts of the Republic of Kazakhstan shall refer to the securities.
3. The securities due to the form of issuance shall be subdivided in: 1) certified and uncertificated; 2) equity and private; 3) inscribed, bearer and order. Certified securities shall be the securities, issued in documentary form ( on the paper or
other material media with the opportunity to read the content of the security without using special equipment).
Uncertificated securities shall be the securities, issued in non-documentary form (in the form of the set of electronic records).
3. In the cases which are stipulated in legislative acts, for the exercise of a conveyance of the rights certified by a security, it shall be sufficient proof to establish in the special register ( usual or electronic records).
Equity securities shall be the securities, which within one issue have similar features and attributes, which are placed and turned on the terms uniform for the current issue.
Private securities shall be the securities, which do not correspond to the features, indicated in the part four of this paragraph.
Inscribed security shall be the security, confirming the accessory of the rights, certified by it, to the person mention in it.
Bearer security shall be the security, confirming the accessory of the rights, certified by it, to the bearer of the security.
Order security shall be the security, confirming the accessory of the rights, certified by it, to the person mention in it, and to another person, in the case of transfer of these rights in the order specified by paragraph 3 of Article 132 of this Code.
4. The possibility of producing a certain of securities in one form or another may be excluded by this Code and other legislative acts of the Republic of Kazakhstan.
Footnote. Article 129 is in the wording of the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416, as amended by the Law of the Republic of Kazakhstan dated 10.12.2008 No. 101-IV (shall be enforced from 01.01.2009).
Article 130. Confirmation of the Rights for the Securities
1. The right of ownership of a security is proved by the possession of the certificate of security itself. In the case of transfer of the documentary security for safekeeping to a professional member of the security market, who is authorized to keep such securities by way of a license issued to him (her) or in accordance with legislative acts of the Republic of Kazakhstan, the bank statement, opened by this professional member for tracking purposes, shall become the confirmation of the rights for this security. In the case of difference between documentary security and statement of the mentioned account, the statement shall have a priority.
2.The statement of account, opened for tracking purposes by the professional member of security market, who is authorized to register the contract with the securities according to the license issued to him (her) or in accordance with legislative acts of the Republic of Kazakhstan shall be the confirmation of the right for the uncertified security.
4. The order of opening and conducting by the professional members of the security market of the accounts, intended for record the securities, as well as the requirements for the content and designing of the statements of such assets shall be determined by the legislation of the Republic of Kazakhstan.
Footnote. Article 130 is in the wording of the Law of the Republic of Kazakhstan dated 16.05.2003 No. 416; as amended by the Law of the Republic of Kazakhstan dated 28.12.2011 No. 524-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 131. The Requirements to Securities
1. Thes of rights which are certified by securities, the obligatory details of securities, and the requirements with regard to the pro-forma of a security and any other necessary requirements, shall be determined by legislative acts, or in accordance with the procedure established thereby.
2. The absence of obligatory details concerning a security or the non-compliance of a security with the pro-form established there for, shall entail its invalidity.
Article 132. Conveyance of Rights Associated with Securities
1. In order to convey to any person the rights certified by a bearer's security, it shall be sufficient to hand the security to that person.
2. Rights certified by a registered security issued in documentary form are transferred in the order established for the assignment of the claim (assignment). In accordance with Article 347 of this Code, the transferor of the security is liable for the invalidity of the relevant claim, but not for its execution.
2-1. The peculiarities of the transfer of rights on the equity securities and the confirmation of rights on them shall be determined by the legislative acts of the Republic of Kazakhstan.
3. The right associated with order securities shall be conveyed by means of making on that security a conveyance inscription, the endorsement. The person who transfers the rights associated with an order security (endorser) shall be liable not only for the existence of the right but also for its exercise.
An endorsement executed on a security shall transfer all the rights certified by the security to the person to whom or by whose order the rights associated with the security (of the endorsee) are transferred. The endorsement may be blank (without any indication of the person to whom the consideration must be addressed).
The endorsement may be restricted only by the order to exercise the rights certified by the security, without any conveyance of those rights to endorser (pre-nomination endorsement). In this case the endorser shall act as a representative.
Footnote. Paragraph 2 of Article 132 is supplemented with the paragraph by the Law of the Republic of Kazakhstan dated May 2, 1998 No. 211; dated May 16, 2003 No. 416; dated June 3, 2003 No. 426; dated 21.06.2013 № 106-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 24.11.2015 № 422-V (shall be enforced from 01.01.2016).
Article 133. Execution with regard to Securities
1. The person that issued a security and all the persons who endorsed it shall be jointly liable to its legitimate owner. In the case of satisfying the claims of the legitimate owner of a security, related to the execution of the obligation certified by it, by one or several persons from amongst those liable in relation to the security, they shall acquire the right to revert claim (regress) to the other persons who had become liable in relation to the security prior to them.
2. The refusal to execute the obligations certified by a security with the reference to the lack of basis for the obligations or to its invalidity shall not be allowed.
3. The owner of a security who detected fraud or forgery of the security shall have the right to present the person that conveyed the security to him (her) with the claim to properly execute the obligation certified by the security and to compensate losses.
4. The rights associated with securities held by any illegitimate holder shall not be exercised.
Footnote. Article 133 as amended by the Law of the Republic of Kazakhstan dated June 3, 2003 No. 426.
Article 134. Restoration of Securities
The restoration of the rights associated with the lost bearers' securities and order securities , shall be carried out by the court in accordance with the procedure stipulated in the procedural legislation.
Article 135. Uncertified Securities
(Article 135 is excluded by the Law of the Republic of Kazakhstan dated May 6, 2003 No . 416).
Article 136. A Debenture
1. A security which certifies the right of its holder to receive its nominal value or its other equivalent assets, from the entity which issued that security within the period established by the terms of that security's issue shall be recognized as debenture.
2. The debentures shall be issued only as inscribed security equity securities. 3. The Government of the Republic of Kazakhstan, The National Bank of the Republic of
Kazakhstan and commercial organizations shall have the rights to issue the debentures. 4. Thes of the debentures and the order of their issue shall be determined by the
legislation of the Republic of Kazakhstan. Footnote. Article 136 is in the wording of the Law of the Republic of Kazakhstan dated
16.05.2003 No. 416; as amended by the Law of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005).
Article 137. A Cheque
Footnote. The Article is excluded by the Law of the Republic of Kazakhstan dated 11.07.1997 No. 154.
Article 138. A Bill of Exchange
Footnote. The Article is excluded by the Law of the Republic of Kazakhstan dated 11.07.1997 No. 154.
Article 139. A Share
1. A share shall be recognized to be a security which certifies the right of its holder ( shareholder) to receive part of net income of a joint stock company in the form of a dividend, to participate in managing the business of the joint stock company, and to part of the property of the joint stock company, which remains after its liquidation, as well as other rights specified by the legislative acts of the Republic of Kazakhstan.
2. The assets shall be issued for the inscribed security equity securities. 3. Thes of the assets shall be determined by the legislation of the Republic of Kazakhstan. The procedure of issue of assets shall be determined by the legislation of the Republic of
Kazakhstan on the security market. 4. Non-commercial organizations, established in the organizational legal form of the joint
stock company shall not make payment of the dividends by their assets. 5. The legislative acts of the Republic of Kazakhstan may specify the opportunity to buy
assets under the court decision from the stockholder, disturbing by his (her) actions or inactivity the interests of the joint stock company.
The legislative acts of the Republic of Kazakhstan may specify the opportunity and basis of the forced buy of the assets by banks and organizations, conducting certains of bank operations, as well as insurance (reinsurance) organizations upon the existence of the negative value of self capital, calculating in the order established by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 139 new wording is by the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416; as amended by the Law of the Republic of Kazakhstan dated July 8, 2005 No. 72 (the order of enforcement see Art. 2).
Article 139-1. Bank Deposit Certificate
Bank deposit certificate shall be the certified private security, confirming the rights of its holder to receive upon the expiry of circulation period, specified by the terms of issue, or before its expiration, its nominal cost, as well as compensation in the amount, specified by the term of issue.
Footnote. Article 139-1 is supplemented by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 140. Bank Certificate
Footnote. The Article is excluded by the Law of the Republic of Kazakhstan dated 11.07.1997 No. 154.
Paragraph 3. Moral rights
Article 141. Protection of Personal Non-Property Rights
1. A person whose personal non-property rights are violated, apart from the measures stipulated in Article 9 of this code, shall have the right to compensation of moral damage by the rules of this Code.
2. Protection of personal property rights shall be carried out by the court in accordance with the procedure stipulated in civil procedural legislation.
3. Personal non-property rights shall be subject to protection irrespective of the guilt of the person that violated the right, unless it is otherwise stipulated in this Code. The person who presented a claim of defense 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, claim from the violator the elimination of the consequences of the violation or at the expense of the violator to independently undertake the necessary actions, or to delegate their execution to a third party.
Footnote. Article 141 is supplemented by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 142. Personal non-property rights which are associated with the property rights
In the event that personal non-property and property rights are simultaneously violated, the amount of compensation for property damage shall be increased by considering 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. Through the court a citizen or a legal entity shall have the right to refutation of information which damages his (her) honor, dignity or business reputation, unless the one who spreads such information proves that the information is true.
2. Where the information that damages the honor, dignity or business reputation of a citizen or a legal entity is spread through the mass media, that information must be refuted by the same mass media without any charge imposed the aforementioned citizen or legal entity.
In the case where specified information is contained in a document issued by an organization, such a document shall be subject to replacement or annulment with the obligatory communication to the addressees of the inconsistency of the information contained in that document.
The procedure for refutation in other cases shall be established by the court. 3. A citizen or a legal entity with regard to which the mass media published information
which restricts his rights or legitimate interests, shall have the right to publish their response in the same mass media free of any charge.
4. The claim by a citizen or a legal entity to publish a refutation or response in the mass media shall be considered by the court in a case where the mass media refused such publication, or did not carry out the publication within one month, and also in the case of its liquidation.
5. Where a court decision is not executed, the court shall have the right to impose a fine upon the violator, which shall be taken 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 procedural legislation. The payment of the fine shall not exempt the violator from the obligation to execute the action stipulated in the court decision.
6. A citizen or a legal entity with regard to whom information was spread that damages his (her) honor, dignity or business reputation, shall have the right, apart from the refutation of such information, to demand compensation for the damage and the moral harm inflicted by their promulgation.
Regulations of this Article to protect the business reputation of the citizen shall be relevantly applied in order to protect the business reputation of the legal entity, except for the requirements to compensate the moral harm. Regulations on compensation of the damages shall be applied to protect the business reputation of the legal entity according to the procedure, established by this Code.
7. Where it is impossible to identify the person that spreads the information which damages the honor, dignity or business reputation of a citizen or a legal entity, the person with regard to whom such information is spread, shall have the right to appeal to the court with an application to recognize that the promulgated information as not true.
Footnote. Article 143 is supplemented by the Laws of the Republic of Kazakhstan dated 06.02.2009 No. 123-IV (the order of enforcement see Art. 2); dated 25.03.2001 No. 421-IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
Article 144. The Right to Protect Secrets of Private Life
1. A citizen shall have the right to protect the secrecy of his private life, including the secrecy of letter exchange, telephone conversations, diaries, notes, comments, sexual behavior , adoption, birth, medical secrets, legal secrets, and the secrecy of bank deposits.
The disclosure of the secrets of private life shall only be possible in the cases which are stipulated by legislative acts.
2. The publication of diaries, notes, comments and any other documents shall be permissible only with the permission of their author, and as regards letters, - with the consent of both their author and the addressee. In the case of death of one of them, specified documents may be published with the consent of the surviving spouse and the children of the deceased.
Footnote. Article 144 is supplemented by the Laws of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 145. The Right to Own Picture
1. Nobody shall have the right to use the image of a person's face without his consent, and in the case of his death, - without the consent of his inheritors.
2. 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 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 inviolability of his house, that is, to prevent any attempts of intrusion into his house against his will, except for the cases stipulated in legislative acts.
Chapter 4. Transactions
Article 147. The Definition of a Transaction
The actions of citizens and legal entities which are aimed at 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 bilateral or multilateral (agreements). 2. A transaction, the performance whereof, in accordance with legislation or the
agreement of the parties, requires the expression of the will of one party and this is sufficient, shall be recognized as a unilateral transaction.
3. In order to enter into an agreement, it shall be necessary to have an expression of the agreed will of two parties (a bilateral transaction) or of three or more parties (multilateral transaction).
Article 149. The Legal Regulation of Unilateral Transactions
1. A unilateral transaction shall create obligations for the entity that enters into the transaction. It may create obligations for other persons only in the cases which are stipulated in legislative acts or by agreement with those persons.
2. Appropriately, the general provisions concerning obligations and agreements shall apply to unilateral transactions, inasmuch as it does not contradict legislation, or the nature and the essence of the transaction.
Article 150. Transactions Entered into Under Condition
1. A transaction shall be considered to be entered into under a delaying condition, where the parties conditioned the emergence of their rights and obligations upon a circumstance, with regard to which it is not known whether it will occur or not.
2. A transaction shall be deemed to be entered into under an invalidating provision, when the parties conditioned the invalidation of the rights and obligations by a circumstance, with regard to which it is not known whether it will occur or not.
3. When the emergence of a condition is unfairly impeded by a party to which the emergence of the condition is non-beneficial, then the condition shall be recognized as having taken place.
When the emergence of a condition is unfairly assisted by a party, for whom the emergence of the condition is favorable, then the condition shall be recognized as not having taken place.
Article 151. The Form of Transactions
1. Transactions can be entered into orally or in written form (simple or notary). 2. A transaction for which legislation or the agreement of the parties does not establish a
written form (simple or notary), or any other definite form, may be entered into orally, in particular, any transactions which are executed by their commitment. Such a transaction shall be deemed to be entered into also in the case where the will of the person to enter into the transaction is clear from the behavior of the person.
3. A transaction which is confirmed by issuing a ticket, label or any other sign which is generally acceptable for confirmation, shall be deemed to be concluded in oral form, unless otherwise is stipulated in legislation.
4. Silence shall be understood as an expression of the will to enter into a transaction in the events stipulated by legislation or the agreement of the parties.
5. Transactions to execute an agreement which is concluded in writing may, by agreement of the parties, be entered into orally, provided that the transaction does not contradict legislation.
Article 152. The Written Form of Transactions
1. The following transaction must be entered into in writing: 1) those which are carried out in the course of entrepreneurial activities, except for
transactions which are fulfilled by their execution itself, unless it is otherwise stipulated in legislation for individuals of transactions, nor does it ensue from the customs of the business practice;
2) for more than one hundred monthly calculation indices, except for the transactions executed at the very moment they are committed;
3) in any other cases which are stipulated in legislation or the agreement of the parties. 2. A transaction which is executed in writing, must be signed by the parties or their
representatives, unless otherwise ensues from the usual business practice. It shall be allowed, when entering into transactions, to use facsimile copying of signatures
, unless this contradicts legislation or the requirements of one of the participants. 3. Bilateral transactions may be entered into by way of exchanging documents, each one
of them shall be signed by the sending party. Unless otherwise stipulated by legislation or agreement of the parties, the exchange of
letters, telegrams, telephone messages, teletypes, faxes, electronic documents, electronic messages or other documents that determine the subjects and the content of their will, is equal to completion of transaction in writing.
Laws of the Republic of Kazakhstan and (or) at the request of one of the parties may establish additional requirements, which must correspond to the form of the transaction, in particular, the execution of a form on a letterhead of a certain form, seal of a legal entity, if this person in accordance with the legislation of the Republic of Kazakhstan must have a seal.
4. Where a citizen as a result of a physical shortage, disease or illiteracy is not able to personally sign, then upon his request a transaction may be signed by any other citizen. The signature of the latter, unless it is otherwise stipulated in legislation, must be witnessed by a notary or any other official who has the right to enter into such notary action with an indication of the reasons for which the person who entered into the transaction failed to sign it personally.
5. The party that fulfilled a transaction which was executed in writing, shall have the right to claim from the other party a document which confirms that fulfillment.
The same right shall belong to the party which fulfilled an oral entrepreneurial transaction , except for the transactions which are fulfilled by their commitment itself.
Footnote. Article 152 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated January 7, 2003 No. 372; dated 29.12.2014 № 269-V (shall be enforced from 01.01.2015); dated 24.11.2015 № 419-V (shall be enforced from 01.01.2016); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day
its first official publication); the Law of the Republic of Kazakhstan No. 156-VI dated 24.05.2018 (shall be enforced upon expiration of ten calendar days after the day of its first official publication).
Article 153. Consequences of non-compliance with the written form of transaction"
1. Failure to comply with a simple written form of a transaction deprives the parties of the right, in the event of a dispute, to confirm its commission, maintenance or execution by witness statements. The parties, however, have the right to confirm the commission, maintenance or execution of the transaction by written or other evidence other than witness statements.
2. In cases directly specified in laws of the Republic of Kazakhstan or agreement of the parties, if a simple written form is not followed, the transaction is considered null and void.
3. In case of non-observance of a simple written form, the foreign economic transaction is considered null and void.
Footnote. Article 153 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 154. Notarization of Transactions
1. In cases stipulated by laws of the Republic of Kazakhstan or by agreement of the parties, the written transactions are deemed to be committed only after their notarization.
Failure to comply with the requirement of notarization entails the nullity of the transaction with the consequences provided for in paragraph 3 of Article 157-1 of this Code, except for the cases specified in paragraph 2 of this article.
2. Where a transaction which requires notarization is actually fulfilled by the parties or by one of the parties, and by its contents does not contradict legislation and does not violate the rights of third persons, 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.
Footnote. Article 154 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 155. Registration of Transactions
1. Transactions which are subject, in accordance with the legislative acts, to state registration or other registration, shall be considered as concluded after their registration, unless it is otherwise stipulated in the legislative acts.
A denial of registration must be formulated in writing, and it may be possible only with a reference to violation of the requirements of legislation.
2. Where a transaction which requires state registration is executed in a proper form, but one of the parties evades its registration, the court shall have the right upon the claim of the counter party to pass the decision to register the transaction. In this case the transaction shall be registered in accordance with the decision of the court.
Footnote. Article 155 is in the wording of the Law of the Republic of Kazakhstan dated 26.07.2007 No. 311 (shall be enforced upon expiry of ten calendar days after the official publication), as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 156. Exchange Transactions
1. Transactions, which subject is the property, permitted to be circulated at the bourse and which are concluded by the participants of the bourse in accordance with the procedure established by legislation concerning the appropriate (commodity, stock and other) bourses and in the charters of bourses, shall be the exchange transactions.
2. Bourse transactions may be documented by broker records, and they shall be subject to registration by the bourse.
3. Unless otherwise ensues from legislation, from the agreement of the parties or from the essence of the transaction, the rules for the relevant agreements (purchase and sale agreements, commission agreements, and other) shall apply to bourse transactions in relation to the contents.
4. Legislation or rules of exchange trade may provide for the terms of exchange transactions that constitute commercial secret of the parties and are not subject to disclosure without their consent, except for information submitted to the authorized financial monitoring body in accordance with the Law of the Republic of Kazakhstan “On countering legalization ( laundering) of proceeds from crime and financing of terrorism".
5. Disputes related to conclusion of exchange transactions are considered in arbitration under the relevant exchange, the decision of which may be revoked by the court in cases provided for by the law of the Republic of Kazakhstan.
6. Is excluded. Footnote. Article 156 as amended by the Laws of the Republic of Kazakhstan dated
02.03.1998 No. 211; dated 16.05.2003 No. 416; dated 28.08.2009 No. 192-IV (shall be enforced from 08.03.2010); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 21.06.2012 No. 19-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 10.06.2014 № 206-V (shall be enforced upon expiry of ten calendar days after the day its first official
publication); dated 08.04.2016 № 489-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 157. Disputable and void transactions
1. A transaction is void on the grounds established by this Code or other legislative acts, by virtue of its recognition as such by the court (a disputable transaction) or on the grounds directly provided for by the legislative acts, regardless of such recognition (null transaction).
A transaction is considered disputable if its nullity is not provided for by legislative acts. In the event of a dispute over the nullity of a transaction, its invalidity is established by
the court. 2. A transaction is considered invalid if the requirements for the form, content and
participants of the transaction are violated, as well as to freedom of their will on the grounds established by this Code or other legislative acts.
3. The requirement to recognize a transaction as invalid may be brought by interested persons, by an appropriate state body or by a prosecutor.
The interested person is a person whose rights and legitimate interests are violated or may be violated as a result of the said transaction.
The list of persons entitled to claim it to be invalid is established by this Code and (or) other legislative acts.
Footnote. Article 157 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 157-1. General provisions on consequences of invalidity of transaction
1. A party to the transaction or persons established in paragraph 3 of Article 157 of this Code shall have the right to file the claim to apply the consequences of invalidity of a void transaction.
2. An invalid transaction shall not entail legal consequences, except for those associated with its invalidity, and shall be invalid from the moment of its commission, unless otherwise provided by this Code, legislative acts of the Republic of Kazakhstan or follows from the substance or content of the transaction.
3. In case of invalidity of the transaction, each party is obliged to return everything received on the transaction to the other party, and if it is impossible to return in kind ( including when the received is expressed in the use of property, work performed or service rendered) - to refund the value of the property to be returned, works performed or services rendered in money, if other consequences of invalidity of the transaction are not provided for by this Code or other legislative acts of the Republic of Kazakhstan.
4. The court may recover from the party guilty of committing the actions that caused the invalidity of the transaction, in favor of the other party, the losses incurred by the latter related to recognition of the transaction as invalid.
5. If a transaction is aimed at achieving a criminal purpose, the unlawfulness of which is established by a court verdict (resolution), then if there is intent on both parties, everything received by them under the transaction or intended for receipt is subject to confiscation upon the resolution or verdict of the court. In the event that such a transaction is executed in one party, everything received by the other party shall be confiscated and all that is due from it to the first party. If none of the parties has started the execution, all that is stipulated by the transaction for execution is subject to confiscation.
6. If there is intent to achieve a criminal purpose, the unlawfulness of which is established by the court's verdict (resolution), everything that one of the parties received under the transaction is to be returned to the other party, and everything received by the latter or due to it under the transaction is subject to confiscation.
7. In view of specific circumstances, the court is entitled not to apply partially or fully the consequences provided for in paragraphs 5 and 6 of this article with regard to the confiscation of property received or receivable under an invalid transaction. In this part, the consequences occur, stipulated in paragraph 3 of this article.
8. Recognizing the transaction as invalid, the court has the right, subject to specific circumstances, to confine itself to prohibiting its further execution.
Footnote. Chapter 4 is supplemented by Article 157-1 in accordance with the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 158. Invalidity of a transaction, the content of which does not comply with the requirements of the legislation of the Republic Kazakhstan
1. A transaction whose content does not comply with the requirements of the law, as well as a transaction committed for a purpose that is clearly contrary to the basics of law and order, is disputable and may be recognized invalid by the court, unless otherwise established by this Code and other legislative acts of the Republic of Kazakhstan.
2. A transaction aimed at achieving a criminal purpose, the unlawfulness of which is established by a court verdict (resolution), is void.
3. A person who deliberately entered into a transaction that violates the requirements of the legislation of the Republic of Kazakhstan, the charter of a legal entity or the competence of its bodies, may not claim the invalidation of the transaction if such demand is profit-motivated or with the intention to evade responsibility.
4. In the event that one of the participants in the transaction has committed it with the intention to evade performance of the obligation or from liability to a third party or state, and
the other party to the transaction knew or should have known about this intention, the interested person (the state) has the right to demand the invalidation of the transaction.
Footnote. Article 158 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 159. The Basis for the Invalidity of Transactions
1. A transaction that is committed without obtaining the necessary permit or after the expiry of the permit's validity period is null and void.
2. A transaction that pursues the objectives of unfair competition or violates the requirements of business ethics may be declared invalid by a court.
3. A transaction committed by a person who has not reached the age of fourteen (minors) is null and void except for transactions stipulated in Article 23 of this Code.
4. A transaction which is entered into by a junior which reached fourteen years, without consent of his (her) parents (adopters) or sponsors, except for the transactions which he in accordance with the law has the right to enter into independently, may be recognized by the court as invalid upon the action by the parents (adopters) or the guardian. The provisions of this Article shall not apply to transactions of minors, recognized in accordance with this Code as completely capable (paragraph 2 of Article 17, Article 22-1 of this Code).
5. A transaction committed by a person recognized incompetent due to mental illness or dementia is null and void. A transaction committed by a citizen subsequently recognized as legally incompetent (Article 26 of this Code) is disputable and may be recognized by the court as invalid on the claim of his guardian if it is proved that at the time of the transaction the citizen was in a state of mental disorder.
6. Upon the requirement of the guardian the court may recognize as invalid transaction which is entered into by the person whose deed capacity is restricted by the court.
7. A transaction which is entered into by a citizen who, although capable, but at the moment of its commitment was in a state that he could not realize the meaning of his actions or guide them, may be recognized by the court as invalid in accordance with the action of that citizen, but if when alive the citizen did not have an opportunity to file the action, - after the death of the citizen upon the action of any other interested persons.
8. A transaction which is entered into as a result of a significant error may be recognized by the court as invalid upon an action by the party which acted under the influence of misguidance. The misguidance is material where it relates to the nature of a transaction, the identity, or to any other qualities of its subject which significantly reduce the possibility of its intended use. Misguidance in the motives may serve as a basis of invalidity of a transaction only when such motive is included in its contents as a delaying or annulling condition (Article 150 of this Code).
If the misguidance is a consequence of gross carelessness of the participant in the transaction, or it 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 entered into under the influence of fraud, violence, or threat, and also a transaction that the person was compelled to enter into as a result of a combination of difficult circumstances and on conditions extremely unprofitable for himself (herself) which was exploited by the other party (shackling agreement), may be recognized by the court as invalid upon the action of the victim.
10. A transaction which is concluded as a result of a malicious collusion of the representative of one party with the other party, may be recognized by the court as invalid upon the action of the victimized party. Compensation for losses which are inflicted upon the victimized party (paragraph 4 Article 9 of this Code), may be imposed upon the unfair representative in the procedure of subsidiary liability.
11. A transaction committed by a legal entity in conflict with the objectives of activity specifically restricted by this Code, other legislative acts of the Republic of Kazakhstan or constituent documents, or in violation of the statutory competence of its body, may be declared invalid on the suit of the owner of the property of the legal entity or its founder ( participant), if it is proved that the other party to the transaction knew or should have known about such violations.
12. The transactions which are stipulated in paragraphs 3 and 5 of this Article, upon the claim of the parents, adopters or guardians of infants or of incapable persons by the decisions of a court may be recognized as invalid, provided they are entered into for the benefit of the indicated persons.
Footnote. Article 159 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 12. 01.2007 No. 225 (shall be enforced from the date of its official publication); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 16.05.2014 № 203-V (shall be enforced upon expiry of six months after the day its first official publication); dated 27.02.2017 № 49-VI ( shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 160. Fictitious or Faked Transactions
1. A transaction made only for effect, without the intention to create the corresponding legal consequences (an imaginary transaction), shall be recognized as invalid by the court at the suit of the interested person, the proper state body or the prosecutor.
2. If one transaction is entered into only for the purpose of hiding another transaction ( faked), then the rules shall be applied which are applicable to the transaction which the parties actually had in mind.
Footnote. Article 160 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 161. The Consequences of Invalidity of Part of a Transaction
Invalidity of part of a transaction shall not entail the invalidity of its other parts, provided it is possible to presume that the transaction was entered into without inclusion of its invalid part.
Article 162. Period of Limitation with regard to Invalid Transactions
1. (Is excluded). 2. The statute of limitations with regard to disputes associated with the invalidity of a
transaction on the grounds stipulated in paragraphs 9 and 10 of Article 159 of this Code, shall constitute one year from the date of the cessation of the violence or the threat under which the transaction was entered into, or from the date when the plaintiff learned or should have to learned about any other circumstances which are the basis for the recognition of the transaction as invalid.
Footnote. Paragraph 1 of Article 162 is excluded by the Law of the Republic of Kazakhstan dated March 2, 1998 No.211.
Chapter 5. Representation and Power of Attorney
Article 163. Representation
1. A transaction, committed by one person (representative) on behalf of another person ( represented) by virtue of the authority based on power of attorney, legislation, a resolution of the court or on an administrative act, shall directly create, alter or terminate the civil rights and obligations of the represented.
The authority may also be clear from the situation in which the representative is acting ( salesman in retail trade, cashier, etc.).
2. The rights and obligations shall be acquired directly by the represented in respect of the transaction entered into by the representative.
3. A representative may not enter into transactions on behalf of the represented person, nor in his own name, nor in the name of any other person who he is representing at the same time.
This rule shall not extend to the commercial representation office. 4. The persons who act, although in somebody else's interest, but in their own name (
commercial intermediaries, executors of will in inheritance etc.) shall not be representatives,
nor the persons who are authorized to enter negotiations with regard to transactions which are possible in the future.
5. It shall not be allowed to enter through a representative into transactions which by their nature may be entered into only in person, nor into other transactions in the cases specified in legislative acts.
Footnote. Article 163 as amended by the Laws of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 164. Representation of Incapable Property
On behalf of incapable persons, transactions shall be entered into by their legitimate representatives.
Footnote. Article 164 as amended by the Laws of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 165. Representation without Authority
A transaction which is entered into on behalf of another person by the person who is not authorized to enter into the transaction, or in excess of their powers, shall create, alter or terminate the civil rights and obligations of the represented only in the case of the subsequent approval by him (her) of that transaction.
The subsequent 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 in their concluding agreements (a commercial representative), shall act on the basis of a written agreement which contains indications of the authority of the representative, and in the case where such indications do not exist,- also of the power of 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 (her) with the diligence of a usual entrepreneur.
3. A commercial representative shall have the right to claim payment of the remuneration owed and the expenses incurred by him (her) when executing the instructions of the parties to the agreement in equal shares, unless it is otherwise stipulated in the agreement between them .
4. A commercial representative shall be obliged to keep secret the information which became known to him (her) concerning commercial transactions, also after the implementation of the assignment entrusted to him (her).
5. Special considerations concerning commercial representation in certain spheres of entrepreneurial activity shall be established by legislation.
Article 167. Power of Attorney
1. A written authorization by one person (the grantor) for representation on his behalf, which is issued to another person (the trustee) shall be recognized as a power of attorney.
2. The power of attorney for managing assets and entering into transactions which require notarization, must be notarized, unless otherwise stipulated in legislative acts.
3. The following shall be equated to notarized powers of attorney: 1) powers of attorney of military servicemen and of any other persons who are in medical
treatment at hospitals, sanatoria and any other military medical institutions, attested to by the chiefs, deputy chiefs for medical issues, senior doctors and doctors on duty of those hospitals, sanatoria and other military medical institutions;
2) powers of attorney of the military servicemen, and at the points of deployment of military units, institutions and military education organizations where there is no state notary offices, nor any other bodies which execute notary actions, and also the powers of attorney of workers and employees, members of their families and family members of the military servicemen, which are attested by the commanders (chiefs) of those units, formations, institutions and organizations;
3) powers of attorney of the persons who are in places of imprisonment, certified by the heads of the places of their incarceration;
4) powers of attorney of capable citizens of full age who are in institutions for the social protection of the population, certified by the head of that institution or of the relevant body for the social protection of the population.
5) power of attorney of persons in pre-trial detention centers, certified by the heads of detention facilities.
4. The power of attorney to receive correspondence, including money and parcels, to receive wages and other payments from citizens and legal entities may be certified by local executive bodies of cities of republican significance, the capital, districts, towns of regional significance, akims of town of district significance, settlement, village, where the grantor lives, an organization in which he works or studies, the housing maintenance organization at the place of residence, the administration of the inpatient medical institution in which he is under treatment, and also by the command of the corresponding military units, when the
power of attorney is issued to the serviceman. The power of attorney sent by telegraph, as well as by other types of communication, when the document is sent by a communications employee, is certified by the communication authorities.
5. Third persons shall have the right to consider as authentic a power of attorney which is issued for the commission of their acts, which is sent by the trustor to the trustee through facsimile and other method of communication, without use of official bodies of communication.
6. A power of attorney on behalf of a legal entity shall be issued under the signature of its head or other person authorized by its constituent documents and sealed by this organization if the person in accordance with the legislation of the Republic of Kazakhstan must have a seal.
7. A power of attorney on behalf of a state body, or a commercial or non-profit organization to receive or pay money and any other material assets, must be signed also by the chief (senior) accountant of that organization.
8. The procedure for issuing and the pro-forma of the power attorney to enter into banking transactions and the power of attorney for entering into transactions in the area of trade may be determined by special-purpose rules.
Footnote. Article 167 as amended by Laws of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005), dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication); by the Constitutional Law of the Republic of Kazakhstan dated 03.07.2013 № 121-V (shall be enforced upon expiry of ten calendar days after its first official publication); dated 29.12.2014 № 269-V (shall be enforced from 01.01.2015); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 168. The Term of a Power of Attorney
1. A power attorney may be issued for a term of no longer than three years. Where a longer term is indicated in a power of attorney, it shall be effective within three years, and if the effective period is not indicated therein, then it will be valid within one year from the date of the issue.
2. A power of attorney, which does not specify the date of its issue, is void. Footnote. Article 168 as amended by the Law of the Republic of Kazakhstan dated
27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 169. Re-Assignment
1. A trustee must personally enter into the actions to which he is authorized. He may re-assign their commitment to any other person only in the case where he is authorized
thereto by the power of attorney received or is compelled to do that by virtue of circumstances for the protection of the interests 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 stipulated in paragraph 4 of Article 167 of this Code.
An original power of attorney shall be submitted to the power of attorney, on which basis trustee re-assigns his (her) powers to another person. Notarized copy of the original power of attorney shall be submitted to the power of attorney, on which basis trustee re-assigns to another person or several person, the separate powers specified in the original power of attorney.
3. The term of validity of a power of attorney which is issued for re-assignment may not exceed the term of effect of the original power of attorney on the basis of which it was issued.
4. The trustee who re-assigned the powers to any other person must immediately notify of that the nominator and to communicate to him (her) the necessary information concerning that person and his place of residence. The failure to comply with this duty shall impose on the trustee the liability for the actions the person to whom he re-assigned the powers, as for his (her) own.
Footnote. Article 169 as amended by the Laws of the Republic of Kazakhstan), dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 170. Cessation of a Power of Attorney
1. The effect of a power of attorney shall cease as a result of the following: 1) expiry of the term of the power of attorney; 2) completion of the actions provided for by the power of attorney; 3) annulment of the power of attorney by the person who issued it; 4) the refusal of the person to whom the power of a attorney is issued; 5) the cessation of the legal entity on whose behalf the power of attorney was issued; 6) liquidation of the legal entity on whose behalf the power of attorney was issued;
7) the death of the person (including declaring the citizen deceased), who issued the power of attorney, recognizing him as incapable, partially incapable or missing;
8) the death of the citizen (including declaring the citizen deceased), to whom the power of attorney has been issued, recognizing him as incapable, partially incapable or missing.
2. The person who issued the power of attorney may at any time annul the power of attorney or sub-assignment, and the person to whom the power of attorney has been issued, may relinquish it. The agreement to waive this right shall be void.
Footnote. Article 170 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 171. The Consequences of Terminating a Power of Attorney
1. The trustor shall be obliged to notify about the termination of a power of attorney ( Article 170 of this Code) the person to whom the power of attorney is issued, and also third persons known to him, for representation to whom the power of attorney was issued. The same obligation shall rest with the legal successor of a person who issued the power of attorney in the cases of its cessation on the grounds indicated in paragraphs 5 and 7 of Article 170 of this Code.
2. The rights and obligations which arise as a result of the actions of a person to whom the power of attorney is issued prior to the time when this person learned or should have learned of its cessation, shall remain valid for the one who issued the power of attorney and his legal successors with regard to third persons. This rule shall not apply if the third party knew or should have known that the effect of the power of attorney ceased.
3. Upon the cessation of the power of attorney the person to whom it was issued or his legal successor must immediately return the power of attorney.
4. With the cessation of the power of attorney the conveyance of the powers associated with that power of attorney to the other person (re-assignment) shall lose force.
Chapter 6. Calculation of Periods
Article 172. Determining of the Periods
1. A term which is established by legislation, or transaction or is appointed by the court, shall be determined by a calendar date or an indication of an event which must inevitably take place.
2. A 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 Determined by Period of Time
The course of a term which is determined by a period of time shall begin on the next day after the calendar date or the arrival of the event which determines its beginning.
Article 174. The Expiry of the Term Determined by Period of Time
1. A term which is measured by years shall expire in the corresponding month, and on the date of the last year of the term.
The rules which are used for the terms measured by months shall apply to a term which is measured by one half a year.
2. The rules which are used for the terms measured by months shall apply to the term which is measured by quarters of year. In this respect, a quarter shall be deemed to be equal to three months and the calculation of quarters shall be from the beginning of year.
3. A term measured by months shall expire on the corresponding date of the last month of the term.
A term which is determined as one half of a month shall be handled as a term measured by days, and it shall be deemed to be equal to 15 days.
If the expiry of a term measured by months falls on such month in which that date does not exist, then the term shall expire upon the last day of that month.
4. The term which is measured by weeks shall expire on the appropriate day of the last week of the term.
Article 175. Expiry of a Term on a Non-Working Day
If the last day of a term falls on a non-working day, then the expiry day of the term shall be the nearest working day following that day.
Article 176. The Procedure for Entering into Actions on the Last Day of a Term
1. If a term is established for any action, this action can be carried out within twenty-four hours after the expiration of the term.
However, if that action must be entered into in an organization, then that term shall expire at the hour when in accordance with the established rules that organization ceases 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. Statute of Limitations
Article 177. The Definition of the Limitation Period
1. The statute of limitations is a period of time during which a claim may be satisfied, which arises from a violation of rights of a person or of an interest protected by law.
2. Statutes of limitation and the procedure for their calculation shall be stipulated in law and may not be changed by an agreement of parties.
Article 178. Terms of the Limitation Period
1. The general term of the statute of limitations shall be established at three years.
2. For certains of claims legislative acts may establish special-purpose terms of the statute of limitations, which are shorter or longer as compared to the general term.
3. The rules of Articles 177, 179 - 186 of this Code shall apply also to the special-purpose terms of the statute of limitations, unless legislative acts stipulate otherwise.
Article 179. The Application of the Limitation Period
1. The requirements to protect a violated right shall be accepted by the court for consideration irrespective of expiry of the term of the statute of limitations.
2. The statute of limitations shall be applied by the court only upon the application by a party in the dispute, which is made prior to the adoption of a decision by the court.
3. The expiry of the term of the statute of limitations prior to the presentation of the claim shall be the basis for the court's passing the decision to deny the action.
With the expiry of the term of the statute of limitations on the principal claim, the term of the statute of limitations shall expire with regard to additional claims (concerning the imposition of damages, the responsibility of the trustor etc.).
Article 180. The Course of the Term of the Limitation Period
1. The course of the term of the statute of limitations shall begin on the day when the person learned or should have learned of the violation of the right. Exceptions from this rule shall be established by this Code and the other legislative acts.
2. With regard to the obligations which have a definite term for their implementation, the course of the statute of limitations shall begin upon the expiry of the date of the execution.
3. With regard to the obligations, the implementation term of which is not determined or is determined by the moment of the call, the course of the statute of limitations shall begin from the moment when the call for the implementation of the obligation is made, and where the debtor is granted a privilege term for the implementation of such call, the counting of the statute of limitations shall begin on the expiry of the indicated term (paragraph 2 of Article 177 of this Code).
4. With regard to the regress obligations the course of the statute of limitations shall begin from the moment of execution of the principal obligation.
Article 181. The Term of the Statute of Limitations in the Replacement of Persons in an Obligation
The replacement of persons in an obligation shall not entail any changes with regard to the statute of limitations and the procedure of its calculation.
Article 182. Suspension of the Course of the Statute of Limitations Term
1. The course of the term of the statute of limitations shall be suspended as follows: 1) where the making of the claim is impeded by an event which is extraordinary or
inevitable under those circumstance (force majeure); 2) by virtue of the announcement by the President of the Republic of Kazakhstan of a
postponement of the execution of the obligation of that (moratorium); 3) where the plaintiff or the defendant are military units which are under martial law; 4) where an incapable person has no legal representative; 5) by virtue of suspending the effect of legislation which regulates the relevant relations. With regard to actions concerning the compensation for harm caused to life or health of a
citizen, the course of the term of the statute of limitation shall be suspended also in connection with the application by a citizen to the appointment of a pension or benefit, or the refusal to appoint those. to appropriate organizations for appointment and/or performance of payment of pensions or for appointment of a benefit - prior to appointment and/or performance of payment of pensions or appointment of a benefit or refusal to appoint and/or performance of payment of pensions or appointment of a benefit.
2. The course of the term of the statute of limitations shall be suspended where the circumstances indicated in this Article arose or continued to exist during the last six months of the statute of limitations, and if that term does not exceed six months, - during the course of the term of the statute of limitations.
3. The course of the statute of limitation shall continue from the date of the cessation of the obligation which entailed the suspension of the statute of limitations. In that respect, the remaining part of the term shall be extended up to six months, and where the term of the statute of limitations does not exceed six months, - up to the term of the statute of limitations.
Footnote. Paragraph 1 of Article 182 as amended by the Laws of the Republic of Kazakhstan dated June 19, 1997 No. 134.; The title of the Article as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 183. A Break in the Course of the Term of Statute of Limitations
1. The course of the term of the statute of limitations may be interrupted by the presentation of a claim in accordance with the established procedure and also by the commitment by the obliged person of the actions which evidence the recognition of the debt or any other liability.
2. After an interruption, the course of the term of the statute of limitation shall begin anew ; the time which expired prior to the break shall not be included into the new term.
Footnote. Article 183 as amended by the Laws of the Republic of Kazakhstan) dated 28.01.2011 No. 402-IV (shall be enforced from 05.08.2011).
Article 184. The Course of the Term of the Statute of Limitations in a Case where the Action is not Considered
1. If an action is 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.
2. Where the court left without consideration an action which is presented in a criminal case, then the course of the term of the statute of limitations, which began prior to the presentation of the action, shall be suspended until the sentence by which the action was left without consideration enters into legal force. The time 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 six months, it shall be extended up to six months.
Article 185. The Restoration of the Term of the Statute of Limitation
1. In exceptional cases where the court recognizes the reason for neglecting the term of the statute of limitations as serious because of the circumstances which are associated with the personality of the plaintiff (serious disease, helpless condition, illiteracy, etc.) the violated right of the citizen shall be the subject to protection. The reasons for omitting the term of the statute of limitations may be recognized as serious where they took place during the last six months of the term of the statute of limitations, and where the term is equal to six months, or is less than six months, - during the term of the statute of limitations.
2. The term of the statute of limitations shall be re-established and it shall begin its course again in the cases where there in accordance with legislative acts the plaintiff gets the right to file a new action on the same case in relations with the refusal to execute the court decision in that case.
Article 186. Execution of an Obligation upon Expiry of the Term of the Statute of the Limitations
A debtor or any other obliged entity that implemented an obligation upon expiry of the term of the statute of limitations, shall not have the right to claim back the implemented obligation, even if at the moment of the implementation the indicated person did not know of the expiry of the statute of limitations term.
Article 187. The Claims to which the Statute of the Limitations Does Not Apply
The statute of limitations shall not apply to the following:
1) claims concerning the protection of non-material assets and personal non-property rights, except for the cases which are stipulated in legislative acts;
2) claims of investors to the bank to repay their bank investments; 3) claims concerning the compensation for harm caused to life or health of a citizen.
However, the claims which are presented upon the expiry of the statute of limitations shall be satisfied for no longer than three years preceding the presentation of the claim;
4) claims of a proprietor or any other legitimate owner concerning the elimination of any violations of his (her) right, where those violations are not associated with deprivation of ownership (Articles 264, 265 of this Code);
5) in the cases established by legislative acts, - also to any other claims. Footnote. Article 187 as amended by the Law of the Republic of Kazakhstan dated July
11, 1997 No. 154.
Section 2. The Right to Own and Other Proprietary Rights Chapter 8. General provisions on the right of ownership and other proprietary rights
Footnote. The title of Chapter 8 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 188. The Definition and Contents of the Right to Own
1. The right to own shall be a recognized and protected by legislative acts the right of a person at his (her) discretion to own, use and dispose of the property which belongs to him ( her).
The right of ownership shall be re-assigned to another person with all the encumbrances which existed at the moment of the commission of the transaction.
2. The owner shall have the rights to possess, use and dispose of his assets. The rights to own shall represent the legally-enforced capacity to exercise the actual possession of assets.
The right to use shall represent the legally-enforced possibility to extract from the assets their useful natural properties and also to extract benefits out of it. A benefit may be in the form of income, gain, fruit and in other forms.
The right to dispose shall represent the legally-enforced capacity to determine the legal destiny of property.
3. The owner shall have the right at his discretion to enter into with regard to the property which belongs to him, any actions including the alienation of the property into the freehold of any other persons, or to transfer to them, remaining the owner, his rights associated with ownership, use and disposal of the property, to pledge the property and to encumber it by any other methods and dispose of it in any other way.
4. The exercise by the owner of his powers must not violate the rights and legally protected interests of other persons and the state. The violation of the rights and legitimate interests may be expressed, aside from any other forms, in the abuse by the owner of his monopoly or any other dominant position.
The owner must adopt measures which prevent harm to the health of citizens and to the environment, which may be inflicted in the exercise of his rights.
5. The right to own shall be of indefinite term. The right to own property may be terminated by compulsion only upon the grounds provided for by this Code.
6. In the cases, on the conditions and within the limits provided for by legislative acts, the owner must allow for a restricted use of his property by any other persons.
Footnote. Paragraph 1 of Article 188 is supplemented with the paragraph by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 189. The Burden of Maintaining Property
1. The owner shall bear the burden of maintaining the property which belongs to him, unless it is otherwise stipulated by legislative acts or by an agreement, and he may not in a unilateral procedure transfer such a burden to a third person.
2. If property is legally held by third persons, then the costs incurred by them for the maintenance of somebody else's property, shall be subject to reimbursement by the owner, unless otherwise is stipulated in the agreement.
Expenditures associated with the maintenance of the assets shall not be reimbursed to the person who owns the thing unfairly and illegally (Article 263 of this Code).
Article 190. The Risk of Occasional Destruction or Occasional Damage to Property
1. The risk of an occasional destruction or an occasional damage to objects to be alienated shall be transferred to the acquirer simultaneously with the emergence of his right to own, unless it is otherwise stipulated in legislative acts or an agreement.
2. Where the alienator guiltily delayed the transfer of objects or the acquirer guiltily delayed their acceptance, the risk of occasional destruction or occasional damage shall be borne by the party which caused the delay.
Article 191. The Definition ands of Private Property
1. Private property shall be recognized as the property of citizens and of non-state-owned legal entities and their associations.
2. Any property, except for certains of property which in accordance with legislative acts may not belong to citizens or legal entities, may be in private ownership.
The quantity and the value of the assets which are in private ownership shall not be restricted.
Footnote. Article 191 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 192. The Right to State Property
1. The state property shall be recognized in the form of the Republic's property and communal property.
2. The property of the Republic shall consist of the state treasury and the property allocated to state owned Republic's legal entities in accordance with legislative acts.
Funds of the republican budget, objects of state property listed in Article 193 of this Code, and other state property not assigned to state legal entities, constitute the state treasury of the Republic of Kazakhstan.
3. Communal property shall consist of the local treasury and assets which are entrusted to the communal legal entities in accordance with legislative acts.
The resources of the local budget and any other communal properties which are not attached to state owned legal entities, shall constitute the local treasury.
Note RCLI! This edition of paragraph 3-1 is valid dated 01.01.2018 for cities of district importance,
villages, settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
3-1. Communal property is divided into local government and self-governance levels by: oblast, cities of republican importance, the capital city; regional (cities of oblast significance); cities of district significance, villages, settlements, and rural districts (municipal property
of local self-government). 4. The property which is in the state ownership may be entrusted to state legal entities in
accordance with the economic management or operational management. 5. Special considerations in the legal regime of the state property which is under authority
of certain state-owned institutions shall be defined by legislative acts. 6. Transfer of state property from one type of state ownership to another shall be carried
out in accordance with the legislative act of the Republic of Kazakhstan on state property. Voluntary and gratuitous transfer of property from private ownership to state property
shall be carried out in the order determined by the legislative act of the Republic of Kazakhstan on state property.
Note RCLI! Part three of point 6 is valid dated 01.01.2018 for cities of district importance, villages,
settlements, rural districts with a population of more than two thousand people in accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
Transfer of property in communal ownership from one level of local government and self-government to another is carried out in accordance with the legislative act of the Republic of Kazakhstan on state property.
7. Provisions of this Article shall be applied respectively to other, except for the right to ownership, civil sights to state property, unless another provided by the legislative act of the Republic of Kazakhstan on state property or do not contradict to the subject of the civil rights.
Footnote. Article 192 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated November 4, 1999 No. 472; dated March 2, 2001 No. 162; dated May 21, 2002 No. 323; dated May 18, 2005 No. 50; dated January 12, 2007 No. 225 ( shall be enforced from the date of its official publication); dated 01 03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 01.03.2011 № 414-IV (shall be enforced from the day of its first official publication); dated 11.07.2017 № 90-VI (the order of enactment see paras. 1), paragraph 1 of Article 2).
Article 193. Ownership of Land and Other Natural Resources
Land, its subsurface, water, flora, and fauna, and other natural resources, shall be in the state ownership. Land may also be in private ownership on the grounds, conditions, and within the limits, stipulated by legislative acts.
Footnote. Article 193 in the new wording of the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211
Article 193-1. Strategic Facilities
1. The strategic object is the property, which has a social-economic significance for the sustainable development of the Kazakh society, whose ownership and (or) use and (or) control shall influence the state of the national security of the Republic of Kazakhstan.
2.The following entities may be regarded as strategic facilities: backbone railway networks; main pipelines; national electric networks; trunk circuits; objects of television and radio broadcasting (engineering and manufacturing apparatus of the land and satellite of television and radio broadcasting); oil-refineries; energy producing facilities with a capacity exceeding 50 megawatts; national post networks; international airports; international seaports; navigational technologies of the air traffic control system; equipments and navigational signs,
regulating and guarantying safety of navigation; targets of using of nuclear energy; targets of space sector; water facilities; public highways; as well as the blocks of shares (participatory interests, stakes) in the legal bodies, which owns the strategic facilities, the holdings of shares (participatory interest, pies) of legal and private bodies, which have an opportunity to directly or indirectly shape decisions or to influence on the decisions taken by the legal bodies, which own the strategic facilities.
The strategic facilities may be owned by the state or legal bodies in accordance with the legislation of the Republic of Kazakhstan.
3. The encumbrance of strategic facilities by the rights of third persons or their alienation shall be possible on the basis of the decision of the Government of the Republic of Kazakhstan on granting of permission and in the order, established by the legislative act of the Republic of Kazakhstan concerning the state property.
4. In the cases of intention of the citizen or non-governmental legal entity to make a transaction for alienation of the strategic facility, as well as for foreclosure on the strategic facility or for alienation of the strategic facility by the rehabilitation or bankruptcy manager, or for the sale of a pledged property (strategic facility) by the pledge holder without legal proceedings, or the levying of execution on the strategic facility on the basis of judicial act, the Republic of Kazakhstan has the priority right to acquire the strategic facility on the terms determined by the legislative act of the Republic of Kazakhstan on state property.
The market price of the strategic facility shall be determined in accordance with the legislation of the Republic of Kazakhstan concerning the valuation activities and by the legislative act of the Republic of Kazakhstan concerning the state property.
The order of using priority right to obtain the strategic facility shall be determined by the legislative act of the Republic of Kazakhstan concerning the state property.
5. If during encumbrance of the strategic facility by the rights of third parties or its alienation, the requirements of paragraphs 3 and 4 of this Article are violated, such transactions shall be null and void.
Footnote. The Code is supplemented with Article 193-1 by the Laws of the Republic of Kazakhstan dated 07.08.02007 No. 321 (shall be enforced from the date of its official publication); as amended by the Laws of the Republic of Kazakhstan dated 13.02.2009 No. 135-IV (the order of enforcement see Art. 3); dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 22.06.2012 No. 21- IV ( shall be enforced upon expiry of ten calendar days after its first official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 194. The Right to Own and Other Proprietary Rights to Housing
Special considerations for the exercise of the right of ownership and any other corporeal rights relating to housing shall be covered by legislation concerning housing.
Article 195. The Proprietary Rights of Persons Who are Not Owners
1. Aside from the right to own, the following shall be recognized as corporeal rights: 1) the right to use land; 2) the economic management; 3) the right to operational management; 3-1) the limited right to the target using of another property (servitude); 4) other corporeal rights, provided for by this Code or any other legislative acts. 2. The provisions concerning the right of ownership shall apply to corporeal rights, unless
it is otherwise stipulated in legislation, and when it does not contradict the nature of a given corporeal right.
3. Passing of title to another person’s property shall not constitute grounds for termination of the other corporeal rights to this property, unless otherwise specified by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 195 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated January 12, 2007 No. 225 (shall be enforced from the date of its first official publication); dated 25.03.2011 No. 421-IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
Chapter 9. The Economic Management
196. The Economic Management of a State Enterprise 1. The economic management shall be a corporeal right of state-owned enterprises that
received their property from the State as the owner, and which exercise within the limits established by this Code and other legislative acts, the right to own, use and dispose of that property.
2. Special considerations for the exercise of the economic management shall be determined by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 196 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 197. The Objects of the Economic Management
Any property, unless it is otherwise stipulated in legislative acts of the Republic of Kazakhstan, may be object of the economic management.
Footnote. Article 197 as amended by the Laws of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 198. The Acquisition and Termination of the Right of Business Authority
1. The right of business authority over the property which the owner decided to entrust to a state-owned enterprise that has already been formed, shall arise for that enterprise at the moment of the registration of the property in the independent balance-sheet of the enterprise, unless it is otherwise established by legislation or decision of the owner.
2. The agricultural produce, products and income from the use of the assets which are under business authority, and also the assets which are acquired by the enterprise in accordance with agreements or on any other grounds, shall be received into the business authority of the enterprise in accordance with the procedure established by legislative acts for the acquisition of the right to own.
3. The economic management with regard to property shall cease on the grounds and in accordance with the procedure stipulated by legislation for the cessation of the right of ownership, and also in the cases of the legitimate withdrawal of property from the enterprise by decision of the owner.
Article 199. The Right of the Owner With Regard to the Property which is Under Business Authority
The owner of the assets which are under business authority, shall in accordance with legislative acts decide issues of creating an enterprise, determining the objectives and purposes of its activity, of its reorganization and liquidation, and the owner shall exercise the control of use of the property belonging to the enterprise of its purposeful use and safety.
The owner shall have the right to receive part of net income from the use of the assets which are under the business authority of the enterprise formed by him (her).
Footnote. Article 199 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 200. The Conditions for the Exercise of the Property Rights of a State-Owned Enterprise
1. A state-owned enterprise which carries out its activities under the rights to business authority, unless it is otherwise stipulated in legislative acts, shall not have the right to enter into the followings of entrepreneurial activity without the approval of the owner or of the state body authorized by the owner:
1) to sell or transfer to any other persons, exchange, long-term lease (longer than three years), entrust for temporary charge-free use the buildings, facilities, equipment and any other fixed assets of the enterprise which belong to it;
2) to form affiliates and subsidiaries, establish in conjunction with private entrepreneurs enterprises and joint production facilities, to invest in them its productive and monetary capital;
2-1) to dispose of his (her) assets (except for the cases specified by this Article) as well as the debtor indebtedness.
3) give a loan; 4) to issue surety ship or a guarantee with regard to obligations of third persons. 2. Unless it is otherwise stipulated in legislation, a state enterprise shall independently
dispose of the property which is attached to it under the right of business authority, and which is not recognized as fixed assets.
A state-owned enterprise under the rights to business authority shall not have the right to sell and to cut deals of gift in respect of the property, which refer to the basic assets of the state enterprise, as well as assets belonging to it.
Footnote. Article 200 as amended by the Laws of the Republic of Kazakhstan dated 11.07.1997 No. 154; dated 02.03.1998 No. 211; dated 21.05.2002 No. 323; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 201. The Application of the Provisions Concerning the Right of Ownership to the Relations with the Participation of State-Owned Enterprises
The provisions of this Code concerning the right to own shall apply to property relations with the participation of the state enterprises, unless otherwise ensue from this Code and any other legislative acts.
Chapter 10. The Right to the Operational Management
Article 202. The Definition and Contents of the Right
1. The right of operational management shall be recognized as a corporeal right of an institution, state owned institution which is financed at the expense of the funds of its owner, and of a public enterprise which received property from the owner and which exercise within the confines established by legislative acts, and in accordance with the objectives of their activities, assignments of the owner and designation of the property, the rights to possess, use and dispose of that property.
Note RCLI! This edition of paragraph 2 is valid dated 01.01.2018 for cities of district importance,
villages, settlements, rural districts with a population of more than two thousand people in
accordance with the Law of the Republic of Kazakhstan dated 11.07.2017 № 90-VI (valid until 01.01.2020 for cities of district importance, villages, settlements, rural districts with a population of two thousand people or less, see the archive version of the Civil Code of the Republic of Kazakhstan dated 25.12.2017 № 268-XIII).
2. The peculiarities of exercising the right of operational management of state enterprises and state institutions shall be determined by the laws of the Republic of Kazakhstan "On State Property" and "On Local State Management and Self-Government in the Republic of Kazakhstan".
Footnote. Article 202 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 16.12.1998 No. 320; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication); dated 11.07.2017 № 90-VI (the order of enactment see paras. 1), paragraph 1 of Article 2).
Article 203. The Acquisition and Cessation of the Right of Operational Management
The acquisition and cessation of the right of operational management shall be exercised on the conditions and in the accordance with the procedure stipulated in Chapters 13 and 14 of this Code, unless it is otherwise stipulated in legislative acts of the Republic of Kazakhstan .
Footnote. Article 203 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 204. The Rights of the Owner of the Property Entrusted for Operational Management
1. The owner of the assets which are in operational management shall in accordance with legislative acts decide the issues of creating an institution, state-owned institution or a public enterprise, of determining the objectives and the purposes of its activities, it shall have the right to determine the legal destiny of the institution, state-owned institution or public enterprise, and the contents of its activities.
2. The owner shall exercise supervision for the efficient and safe operation by the institution, state-owned institution or the public enterprise of the assets entrusted by the owner .
3. In the event that an institution is formed by several owners, the relations between them and the rights of the owners to manage their assets shall be determined by the foundation agreement or a similar contract.
Footnote. Article 204 as amended by the Laws of the Republic of Kazakhstan dated 16.12.1998 No. 320; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 205. The Right of the Owner to Withdraw and Re-allocate the Property Entrusted for Operational Management
The owner of the assets entrusted to an institution, state-owned institution or a public enterprise shall have the right to withdraw that property or re-allocate it between other legal entities formed by the owner at his (her) discretion, unless it is otherwise stipulated in legislative acts of the Republic of Kazakhstan.
Footnote. Article 205 as amended by the Laws of the Republic of Kazakhstan dated 16.12.1998 No.320; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 206. The Dispose of the Property of an Institution
An institution shall not have the right to alienate or in any other way dispose of the assets which are entrusted to it and of the assets which are acquired at the expense of the resources appropriated to it in accordance with the estimate.
Special considerations for the exercise of the commercial activities of state institutions shall be determined by the legislative act of the Republic of Kazakhstan.
Footnote. Article 206 is in the wording of the Laws of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 207. The Liability of the Foundation Party With Regard to Debts of the Public Enterprise and State-Owned Institution
Footnote. Title of Article 207 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 ? 414-IV (shall be enforced from the date of its first official publication).
1. A public enterprise shall be liable for its obligations with the funds at its disposal. When funds owned by a public enterprise are insufficient, the Government of the
Republic of Kazakhstan or the relevant local executive body shall bear the subsidiary liability under its obligations.
2. Liability of institutions and state-owned institutions shall arise in accordance with the procedure provided for by paragraph 1 of Article 44 of this Code.
Footnote. Article 207 is in the wording of the Laws of the Republic of Kazakhstan dated 16.12.1998 No. 320; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 208. The Transfer of the Right to Own an Institution
When the right to own an institution is transferred to any other entity, that institution shall retain the right of operational management of the property which belongs to it.
Chapter 11. Common Property
Article 209. The Definition and Grounds for the Emergence of Common Property
1. Property which is in the ownership of two or more persons shall belong to them under the right of common ownership.
2. Assets may be in common ownership with the determination of the share of each of the owners in the right to own (shared ownership) or without determining such shares (joint property).
3. Common ownership of any assets shall be shared-ownership, except for the cases where the law stipulates the formation of joint ownership of the property.
4. Common ownership shall emerge when two or several persons receive the property which may not be divided without changing its designation (indivisible items), or may not be divided by virtue of law.
Common ownership of indivisible assets shall emerge in the cases which are stipulated in legislative acts or an agreement.
5. By agreement of the participants of common property, and in the case of failure to reach consensus, upon the decision of a court, shared ownership of the entities may be established with regard to the common property.
6. Ownership of real estate may arise in the form of a condominium, whereby certain parts of real estate are in individual (separate) ownership of citizens and (or) legal entities, and those parts of real estate which are not in separate ownership, shall belong to the owners of parts of real estate under the right of common shared ownership.
The share of each owner in the common property shall be inseparable from his separate ownership of a part of real estate belonging to him.
The size of a share of each owner in the common property, and the degree of participation in costs of its maintenance, shall be related to the size of the parts of real estate which are in individual (separate) ownership, unless it is otherwise stipulated in legislative acts or an agreement.
7. Peculiarities of the legal regime of the general share ownership for the assets of the unit investment fund are determined by the legislative act of the Republic of Kazakhstan on investment and venture funds.
Footnote. Article 209 is supplemented with the paragraph 6 by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211. As amended by the Law of the Republic of Kazakhstan dated July 7, 2004 No. 577; dated 04.07.2018 № 174-І (shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 210. Determining the Shares in the Right of Shared Property
1. When the size of the shares of participants of shared property may not be established on the basis of legislative acts and is not established by an agreement of all its participants, the shares shall be deemed to be equal.
2. An agreement of all the participants in a shared property may establish a procedure for determining or changing their shares in relation to the contribution of each one of them to the formation and the increase of the common property.
Article 211. The Rights of a Participant in Shared Property which are Associated with its Improvement
1. A participant in shared property who carries out at his (her) own expense, in compliance with the procedure established for the use of common property, its inseparable improvements, shall have the right to proportionate increase of his share in the right to the common property.
2. The separable improvements of common property, unless it is otherwise stipulated in an agreement of the participants in common property, shall become the property of the one of the participants who made them.
Article 212. Disposal of the Assets which are in Shared Ownership
1. Disposal of the assets which are in shared property shall be carried out by with the agreement of all its participants.
2. Each participant in the shared property shall have the right at his discretion to sell, transfer as a gift, bequeath, or mortgage his share, or to dispose of it in any other manner in compliance with the conditions stipulated by Article 216 of this Code.
Article 213. Ownership and Use of the Property which is in Shared Ownership
1. Managing and using the assets which are in shared ownership shall be carried out by agreement of all its participants, and where consent is not reached, it shall be established by the court.
2. Each participant in shared ownership shall have the right to be granted, into his ownership and use a part of the common property commensurate with his share, and where it is impossible, he shall have the right to claim from the other participants who own and use the property corresponding to his the share of payment of the appropriate amount or other compensation.
Article 214. Produce, Goods and Income from the Use of the Property which is in Shared Ownership
The produce, goods and income from the use of the property which is in shared ownership , shall become part of the common property. Subsequent distribution of the produce, goods and income shall be carried out between the participants of shared property in proportion to their shares, unless it is otherwise stipulated in the agreement between them.
Article 215. Expenditures Associated with the Maintenance of the Property which is in the Shared Ownership
Each participant in shared ownership shall be obliged to participate in the payment of taxes, levies and any other payments in respect of their common property in proportion to his share, and also in the costs of its maintenance and preservation.
Article 216. The Pre-emption Right
1. When a share in the right of shared ownership is sold to a stranger, the other participants in the shared ownership shall have a pre-emption 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 of selling through a public auction.
Public auctions for selling shares in the right of shared ownership, where the approval of all the participants in the shared ownership is not reached, may be carried out in the cases, stipulated in paragraph 2 of Article 222 of this Code, and in other cases stipulated in legislative acts.
2. The seller of a share shall be obliged to notify in writing the other participants in shared ownership concerning his intention to sell his share to an outside party with an indication of the price and any other conditions on which he is selling it. If the other participants in shared ownership refuse to purchase or fail to acquire the share which is sold in the right to own immovable property during one month, and with regard to any other assets within 10 days from the date of the receipt of the notice, the seller shall have the right to sell his share to any other person.
3. When a share is sold in violation of the pre-emption right, another participant in shared ownership shall have the right within three months to claim in the court a transfer to him of the rights and obligations of the buyer.
4. The assignment of the pre-emption right to purchase a share shall not be allowed. 5. The rules of this Article shall also apply when a share is alienated in accordance with a
barter agreement. 6. The rules of this Article shall extend to the cases of disposition of the strategic facilities
. Footnote. Article 216 as amended by the Laws of the Republic of Kazakhstan dated
August 7, 2007 No. 321 (shall be enforced from the date of its official publication).
Article 217. The Moment of the Transfer to the Buyer of a Share in the Right of Shared Ownership in accordance with an Agreement
A share in the right of shared ownership shall be transferred to the buyer through an agreement from the moment of concluding the agreement, unless the agreement of the parties stipulates otherwise.
The moment of transfer of a share in the right of shared ownership in accordance with the agreement which is subject to state registration or notarization, shall be determined in accordance with paragraph 2 of Article 238 of this Code.
Article 218. Division of Property which is in the Shared Ownership and Appropriation of a Share out of it
1. The property which is in shared ownership may be divided between its participants by an agreement between them.
2. A participant in shared ownership shall have the right to claim the appropriation of his share out of common property.
3. Where participants in shared ownership fail to reach an agreement on the methods and conditions of dividing the common property or appropriation of the share of one of them, a participant in shared ownership shall have the right to claim the appropriation of his share out of the common property, in kind.
When the appropriation of a share in kind is not allowed by legislative acts or it is impossible without unreasonable damage to the property which is in the common ownership, the owner who is appropriating, shall have the right to be paid by the other participants in shared ownership for the value of his share.
4. The misappropriation of the property which is appropriated in kind to a participant in the shared ownership on the basis of this Article, to his share in the right of ownership shall be eliminated by payment of appropriate amount of money or by other compensation.
The payment to a participant in shared property by the other owners of compensation instead of appropriating his share in kind, shall be allowed upon his consent. In the cases where the share of certain owner is minor, and it may not be realistically appropriated and he has not any substantial interest in the use of the common assets, the court may in the case of the absence of consent of that owner, compel the other participants in shared ownership to pay him compensation.
5. With the receipt of compensation, in accordance with paragraphs 3 and 4 of this Article , the owner shall lose the right to his share in the common property.
6. If it is not possible to divide the common property or divide a share out of it according to the rules set forth in paragraphs 3 and 4 of this Article, the court shall decide to sell the
property at the public auction with the subsequent distribution of the proceeds between the participants of common property in proportion to their shares.
Footnote. Article 218 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 219. Common Joint Property
1. Joint common property shall exist in the following forms: 1) the common property of spouses; 2) the common property of a peasant farm; 3) the common property to privatized housing. 2. Legislative acts may stipulate any others of the joint common property. 3. The joint common ownership shall be established and it shall exist, unless an agreement
between its participants stipulates otherwise. Footnote. Article 219 as amended by the Laws of the Republic of Kazakhstan dated
January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 220. Ownership, Use and Disposal of the Property which is in the Joint Ownership
1. The participants in joint ownership, unless it is otherwise stipulated in an agreement between themselves, shall collectively own and use common property.
2. The disposal of the assets which are in the joint ownership, shall be carried out with the consent of all the participants, which is presumed irrespective of which of the participants entered into the property disposal transaction.
3. Each of participants in joint ownership shall have the right to enter into transactions disposing of the common property, unless it is otherwise ensues from the agreement of all the participants. A transaction which is entered into by one of the participants in joint ownership, and which is connected with the disposal of the common property, may be recognized as invalid by the claim of the other participants on the motive that the participant who entered into the transaction did not have the requisite powers, only in a case where it is proved that the other party in the transaction knew or should beforehand have known of it.
When entering into the transactions which require the notarization or state registration, the consent of the other participants in joint ownership, to the commitment of the transaction must be confirmed in the notarial procedure.
4. Paragraphs 1-3 of this Article shall apply, unless it is otherwise stipulated by this Code or other legislative acts with regard to specifics of the joint property.
Article 221. Division of the Property which is in the Joint Ownership and Appropriation of a Share out of it
1. The division of common assets between participants in joint ownership, and also the appropriation of the share of one of them, may be carried out under the condition that there has been a prior definition of the share of each of the participants in the right to common property.
2. When dividing common property or appropriating a share out of it, provided it is not stipulated otherwise in legislative acts or agreement of the participants, their shares shall be recognized as equal.
3. The basis and the procedure for the division of joint property and the appropriation of a share out of it shall be determined in accordance with the rules of Article 218 of this Code, unless it is otherwise stipulated by this Code, or other legislative acts for certains of joint property, nor does it ensue from the essence of relations of the participants in the joint property.
Footnote. Article 221 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 222. Imposition of a Claim on a Share in Common Property
1. The creditor of a participant in shared or joint property in the case of insufficiency of other assets of the latter, shall have the right to impose a claim of appropriating the share of the debtor in the common property for the imposition of the claim upon it.
2. In the event that the other participants in common property refuse to purchase the share of the debtor, the creditor shall have the right to claim through the court the imposition of the claim upon the share of the debtor in the common property by way of selling that share in a public auction.
3. Where in such cases the appropriation of a share in kind is impossible or the other participants in shared or joint property object thereto, the creditor shall have the right to claim the sale by the debtor of his (her) share to the other participants of the common property at the price which is related to the market value of that share, with the use of the funds received from the sale for the repayment of the debt.
Article 223. Common Property of Spouses
1. Property which is gained by spouses during their marriage, shall be the common property, unless an agreement between themselves stipulates that those assets are shared property of the spouses, or it belongs to one or certain parts of it belong to either spouse in accordance with the right of ownership.
2. The assets which belonged to spouses prior to entering the marriage, and also those received by them during the marriage, as a gift or in the procedure of inheritance, shall be the property of either of them.
The objects of individual use (clothes, footwear etc.), except for jewelry and other objects of luxury, although acquired during the marriage at the expense of common funds of the spouses, shall be recognized as the property of that spouse who used them.
Property of each of the spouses may be recognized as their joint property, provided it is established that during their marriage investments have been made at the expense of the common property of the spouses, which significantly increased the value of that property ( capital repairs, refurbishment, re-equipment, etc.).
3. Upon the obligations of one of the spouses, a claim may be imposed only on the assets which are in his (her) ownership, and also upon his (her) share in the common assets of the spouses, which would be due to him, should that property be divided.
4. Special considerations in the right to joint property of spouses shall be determined by legislation of the Republic of Kazakhstan concerning the marriage and family.
Footnote. Article 223 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 224. The Ownership of a Peasant or Farmer Holding
1. The property of a peasant holding shall belong to its members on the right of joint ownership, unless otherwise specified by the agreement.
The property of a farmer holding organized in the form of the association on the basis of the joint operation agreement, shall belong to its members on the right of joint ownership.
The property of a farmer holding, formed on the private enterprise, shall belong to him ( her) on the right of private ownership
2. In joint ownership of the members of a peasant (farmer) holding there shall be plantations on a land plot, business and any other structures, melioration and any other installations, productive and working cattle, poultry, agricultural and other machinery and equipment, transport vehicles, inventories and other assets which are purchased for the farm at the expense of the common funds of its members.
3. The produce, goods, and income received as a result of activities of the peasant (farmer ) holding, shall be recognized as common property of the members of the peasant (farmer) holding and they shall be used by agreement between them.
Footnote. Article 224 is in the wording of the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 225. The Division of Property of a Peasant or Farmer Holding
1. When terminating a peasant (farmer) holding in relation to the departure there from of all its members, or on other basis, the common property shall be subject to division in accordance with the rules stipulated in Articles 218 and 221 of this Code.
2. The means of production which belong to a peasant or farmer holding, in the case of the exit of one of its members from the farm, shall not be subject to division. The person who exited the farm shall have the right to receive a monetary compensation proportionate with his share in the common ownership of that property.
3. In the cases stipulated in paragraph 1 and 2 of this Article, shares of the members of a peasant or farmer holding in the right of joint ownership of the property of the farm shall be recognized as equal, unless the agreement between themselves stipulates otherwise.
Footnote. Article 225 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 226. The Legal Regime of the Property in the case of Reorganization a Peasant or Farmer Holding into a Business Partnership or Co-operative
1. Members of a peasant or farmer holding on the basis of the farm's property may form a business partnership or a production co-operative. Such a reorganized peasant or farmer holding as a legal entity, shall have the right to own the property transferred to it in the form of investments and other contributions by the members of the farm, and also the property received as a result of its activities and acquired on other grounds which do not contradict legislation.
2. The amounts of contributions of members of a peasant or farmer holding, who are participants of a partnership or members of a co-operative, shall be established on the basis of their shares in the right of common ownership of the property of the peasant or farmer holding as determined in accordance with the procedure specified in paragraph 3 of Article 225 of this Code.
Footnote. Article 226 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 227. Common Ownership of Privatized Housing
Housing which is purchased or acquired free of charge by the tenant in accordance with legislation concerning privatization in the buildings of the state housing stock, shall be transferred into the common ownership of the tenant and his (her) family members who reside permanently with him, including minors and those temporarily absent, unless it is otherwise stipulated in an agreement between them.
Special considerations with regard to the right of joint ownership of privatized housing shall be determined by legislative acts concerning housing relations.
Footnote. Article 227 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211, dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Chapter 12. Agreement On Joint Activities (Ordinary Partnership)
Article 228. Ordinary Partnership
1. An ordinary partnership shall be formed on the basis of an agreement on joint activities. In accordance with the agreement concerning joint activities (the agreement on ordinary
partnership) the parties undertake to act jointly in order to earn income or attain any other objective which does not contradict the law.
An ordinary partnership shall not be a legal entity. 2. The agreement concerning joint activities (the agreement on ordinary partnership) shall
be concluded between citizens, citizens and legal entities, and between legal entities ( consortium).
3. The obligations of the participants of an ordinary partnership, which are related to the agreement on joint business activities, before third persons shall be joint obligations, unless their joint activities agreement stipulates otherwise.
Footnote. Article 228 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211. Article 229. Conduct of general business of the parties to the treaty
The parties to a joint venture agreement shall be jointly agreed to conduct their business. By agreement between themselves, they may entrust the management of joint activities and the conduct of joint business to one of the participants, acting in this case on the basis of a power of attorney issued by the other parties to the agreement, or to a third party in the case provided for by Article 823 of this Code.
Footnote. Article 229 of the Law of the Republic of Kazakhstan dated 02.07.2018 № 166- VI (shall be enforced upo the expiration of ten calendar days after the day of its first official publication).
Article 230. Common Property of the Participants in Agreement
1. In order to attain their objectives, the participants in agreement on joint activities shall make contributions in money or in other property or by way of labor contribution.
2. The monetary or any other property contributions of the participants in agreement and also the assets which are created or acquired as a result of their joint activity shall be their joint shared property.
3. (Is excluded).
4. The property of the participants of an agreement shall be subject to the provisions of this Code on common shared property, unless it is otherwise stipulated by the provisions of this Chapter, other legislative acts or an agreement on joint operation.
Footnote. Article 230 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 231. Common Expenditures and Losses of the Participants of the Agreement
The procedure for covering general costs associated with joint activity and losses which are incurred as a result of it shall be defined by the agreement of the participants. When the agreement does not provide for such a procedure, the general costs and losses shall be covered at the expense of the common property of the participants in agreement, and the missing amounts shall be distributed between them in proportion to their shares in that property.
Footnote. Article 231 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 232. The Conveyance of the Right and Refusal to Participate in Joint Activities
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 on joint activities (ordinary partnership agreement).
2. A participant of the agreement on joint activities (ordinary partnership agreement) shall have the right at his discretion to refuse participation in joint activities.
3. Losses which are inflicted by the refusal of any one of them from the participation in joint activities shall be claimed in full volume, unless the agreement on joint activities ( ordinary partnership agreement) stipulates otherwise.
Article 233. Consortium
1. The consortium shall be a temporary voluntary equal-rights union (association) on the basis of an agreement on joint business activities in which legal entities unite certain resources and co-ordinate efforts to solve specific business issues.
2. The participants of a consortium shall retain their business independence and may take part in the activities of any other consortia or associations.
Relations between the members of a consortium shall be built on a contractual basis. 3. Managing a consortium shall be carried out in accordance with the consortium
agreement between the members of the consortium.
4. The participants of a consortium shall be jointly liable for the obligations related to the activities of the consortium, unless it is otherwise stipulated in the agreement on consortium.
5. A consortium shall cease its activities after the execution of the task set to it, upon the decision of its participants.
Footnote. Article 233 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 234. The Rules for Certains of Joint Activities
Certains of business activities shall be regulated by the legislation of the Republic of Kazakhstan in accordance with this Code.
Chapter 13. The Acquisition of the Right to Own and of Other Proprietary Rights
Article 235. The Basis for the Acquisition of the Right to Own
1. The right to own a new object shall belong to the person who manufactured or created it, unless it is otherwise stipulated in an agreement or legislation.
The right to own fruit, production, or income received as a result of the use of the assets, shall be acquired in accordance with Article 123 of this Code.
2. The right to own the property which has an owner may be acquired by any other person on the basis of a purchase and sale agreement, exchange agreement, a gift agreement, or any other transaction to alienate that property.
In the case of death of a citizen, the right to own the assets which belong to him shall be transferred by inheritance to other persons in accordance with the will or law.
In the case of reorganizing a legal entity, the right to own the assets which belong to it shall be transferred to the legal entities which are legal successors of the reorganized legal entity (Article 46 of this Code).
The alienation of the assets from an owner to another person past the approval of the owner shall not be allowed, except for the cases stipulated in this Code.
3. In the cases and in accordance with the procedure stipulated in this Code, a person may acquire the right of ownership of the property which does not have an owner, or the property of which the owner is not known, or the property of which the owner refused it or lost the right to own it for other reasons.
3-1. In the cases and in accordance with the procedure stipulated by the Laws of the Republic of Kazakhstan the state shall acquire the right of ownership of the property when requisition, nationalization, forced taking out of the land property, particularly for the state needs, as well as when alienating of the immovable property in view of taking out of the land property.
4. Members of a consumer co-operative (housing, housing construction co-operative, dacha cooperative, garage and any other co-operative), and other persons who have the right to accumulate share units, who fully paid their unit-share contribution for the apartment, dacha, garage or any other premises granted to those persons by the co-operative for their use, shall acquire the right to own the indicated assets.
Footnote. Article 235 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 236. The Emergence of the Right to Own Newly-Created Immovable Assets
1. The right of ownership to newly created immovable assets shall arise from the moment of state registration.
2. When legislative acts or an agreement stipulate the acceptance of the finished construction objects, then the creation of the relevant property shall be considered to be accomplished from the moment of such acceptance.
3. Is excluded by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI ( shall be enforced upon expiry of ten calendar days after the day its first official publication).
4. Until the moment of state registration of the right to newly created immovable assets, the property shall be subject to the rules on the ownership right for materials and other property from which the immovable property shall be created.
Footnote. Article 236 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 237. Re-processing
1. Unless otherwise stipulated in the agreement, the right of ownership of a new movable asset manufactured by a person by way of processing the materials which do not belong to him (her), shall be acquired by the owner of the materials.
However, when the cost of processing substantially exceeds the cost of the materials, the right to own the new object shall be acquired by the person who, acting in good faith, carried out the processing for himself/herself.
2. Unless it is otherwise stipulated in the agreement, the owner of the materials who acquired the right of ownership of the object manufactured thereof, shall be obliged to compensate the cost of the processing to the person who carried it out, and in the case of the purchase of the right to own the new object by that person, the latter must accordingly compensate to the owner of the materials for their value.
3. The owner of materials who lost them as a result of dishonest actions of the person who carried out the processing, shall have the right to claim the transfer of the new object into his ownership and the reimbursement of the losses inflicted upon him (her).
Article 238. The Moment of the Emergence of the Buyer’s Right to Own by Agreement
1. The buyer of the property shall acquire the right of ownership by agreement from the moment of the conveyance of the object, unless it is otherwise stipulated in legislative acts or agreement.
1-1. If the right of ownership of the buyer under the agreement is subject to the state registration, the right of ownership of the buyer of the property acquires from the moment of such registration, unless it is otherwise stipulated in legislative acts.
2. When an agreement to alienate property is subject to state registration or notarization, the right of ownership shall be acquired by the buyer from the moment of the registration or notarization, and when both notarization and state registration of the agreement are required, then from the moment of its registration.
Footnote. Article 238 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days from the date of its official publication).
Article 239. Transfer of Objects
1. A conveyance shall be recognized as handing objects to the buyer, and equally the submission to a transport organization for shipment to the buyer, and the submission to the post-office for the conveyance to the buyer of the objects which are alienated without obligation of delivery, unless it is otherwise stipulated in legislation or agreement.
2. If by the moment of concluding an agreement on the alienation of an object it is already in the possession of the buyer, the thing shall be recognized as transferred to him from that moment. The transfer of a waybill or bill of lading or any other document of title concerning objects, shall be equated to the transfer of those objects.
Article 240. Acquisitive Prescription
1. A citizen or a legal entity who is not the owner of certain property but who honestly, openly and continuously possess as his own the immovable assets for fifteen years, 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 state registration, shall arise with the person who acquired that property by virtue of acquisitive prescription, from the moment of such registration.
2. Prior to the acquisition of the right to own property, a citizen or a legal entity which holds it as their own, shall have the right to protect their ownership against third persons who
are not the owners of the property and also against third persons, who have no right to own it by virtue of any other reason stipulated in legislative acts or the agreement.
3. A citizen or a legal entity which refer to the length of possession, may add to their possession all the time during which the object was possessed by the person whose legal successors they are.
4. Running of the time period of the acquisitive prescription shall begin from the moment of owning the subject.
5. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV ( shall be enforced upon expiry of ten calendar days from the date of its official publication).
Footnote. Article 240 as amended by the Law of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days from the date of its official publication); dated 22.07.2011 No. 479-IV(shall be enforced upon expiry of ten calendar days from the date of its official publication).
Article 241. Conversation Into Property of the Things which are Commonly Available for Collection or Extraction
In the event that, in accordance with legislation, local tradition, or general permission given by the owner, in forests, bodies of water or in any other territories, it is allowed to collect berries, catch fish, hunt animals, collect or extract any other items, the right to own the relevant items shall be acquired by the person who has collected or extracted them.
Article 242. Ownerless Objects
1. Ownerless objects shall be recognized as objects which have no owner, or whose owner is unknown, or objects for whose owners reject the right to own them.
2. Unless excluded by the rules for the acquisition of the right to own objects rejected by the owner (Article 243 of this Code), findings (Article 245 of this Code), unattended animals (Article 246 of this Code), and hoard (Article 247 of this Code), the right to own ownerless movable objects may be acquired by virtue of acquisition by acquisitive prescription (Article 240 of this Code).
3. Ownerless immovable objects shall be registered for accounting by the body which carries out the state registration of immovable assets, in accordance with an application to the local executive body in whose territory they are identified. Upon expiry of a year from the date of registering an ownerless immovable object, the body which is authorized to manage communal property may petition to the court with the claim to recognize that object as the one received by the communal property.
In the event that the owner release the property right by way of announcing about it, local executive body shall apply to court with the requirement to recognize that object entered the community property from the moment of the announcement about refusal.
Arrangement of work concerning the account, keep, appraise, further use and realization of property, which entered the community property shall be conducted by the local executive body.
Ownerless immovable objects, which are in the possession of the citizens or non-government legal bodies, which possess property as its own, shall not be registered and passed to the community property.
The procedure of account, keep, appraise, further use and realization of property, which entered the community property shall be determined by the Government of the Republic of Kazakhstan.
Owner shall have the right to apply with the application for the deregistration of the object belonging to him (her) as ownerless and to take it in his (her) actual occupancy at any time before the appearance of property right of another person.
Footnote. Article 242 as amended by the Law of the Republic of Kazakhstan dated December 24, 2001 No. 276 (shall be enforced from January 1, 2002); dated December 20, 2004 No. 13 (shall be enforced from January 1, 2005); dated June 22, 2006 No. 147; dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication); dated 22.07.2011 No. 479-IV (shall be enforced upon expiry of ten calendar days from the date of its official publication).
Article 243. Movable Objects Rejected by the Owner
1. Movable objects abandoned by their owner or otherwise left by him in such a manner that rejects ownership of specified objects may be taken by other persons into their ownership in accordance with the procedure provided for by paragraph 2 of this Article.
2. A person who owns, holds or uses a land plot where an abandoned items whose value is apparently lower than twenty monthly assessment indices is located, or abandoned metal scrap, damaged goods are located, shall have the right to turn those item into his (her) ownership by beginning to use them or by performing any other acts which witness the taking such items into ownerships.
Any other abandoned items shall come into ownership of the person who entered their ownership when pursuant to an application of that person, they are recognized by the court as ownerless.
Footnote. Article 243 is in the new wording of the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 244. Unauthorized Construction
1. A residential house, any other structure, facility or any other immovable asset which is created on a land plot which is not allocated for those purposes in accordance with the
procedure stipulated in legislation and also one which is built without obtaining appropriate permits, shall be recognized as unauthorized construction.
2. A person who carries out unauthorized construction shall not acquire the right to own it . That person shall not have the right to dispose of the structure, nor to sell, transfer as gift, lease or commit any other transactions.
An unauthorized construction shall be subject to demolition by the person responsible for its construction or at his (her) expense, except for the cases stipulated in paragraphs 3 and 4 of this Article.
3. The right to own an unauthorized structure may be recognized by the court as belonging to the person, who carried out the construction on a land plot which does not belong to him (her), provided such land plot will be granted to that person in accordance with the established procedure for the placement of the structure so erected.
The right to own an unauthorized structure on a land plot which does not belong to him ( her), except for the land plots, belonging to the state, may be recognized by the court if the owner of the land plot agree with that and with the payment of an indemnity to the last provided that the structure meets the requirements of the legislation of the Republic of Kazakhstan on architecture, town-planning and construction activity.
The right to own an unauthorized construction object may be recognized by the court also as belonging to the person in whose legitimate use the land plot on which the construction took place, is. In that case, the person whose right to own the structure is recognized, shall compensate the builder for the costs of the construction in the amount determined by the court .
The right to own an unauthorized structure may not be recognized as belonging to specified persons when the preservation of the structure entails violation of the rights and interests protected by law of other persons, or where it creates a threat to the life and health of citizens.
4. Taking into account social and economic expedience, unauthorized structure carried out by person on the land plots (on the land, which is not formed in the land plot) belonging to the state and which are not in use of the state land users, may be transferred to communal property with compensation for the costs of its construction in the amount determined by the court.
When carrying out an unauthorized structure on the land plot, which are not in use of the state land users, taking into account social and economic expedience, an unauthorized structure may be transferred to communal property with compensation for the costs of its construction in the amount determined by the court from the budget.
Footnote. Article 244 as amended by the Laws of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication); dated 27.04.2012 No. 15-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 245. Finding
1. A person who found a lost article must immediately notify the person who lost it about its discovery, or the owner of the article, or anyone of the other persons known to him, who have the right to receive it, and return to him the found article.
When an article is found on the premises or in transport, it shall be subject to submission to the person who represents the owner of those premises or transport. In such case the owner shall acquire the rights and bear the responsibilities of the person who found the object.
2. When a person who has the right to receive the found article or his whereabouts are unknown, the person who found the object shall be obliged to report on his finding to the militia or the local executive body.
3. The person who found an article shall have the right to keep it with himself or leave it for the safe custody to the militia, the local executive body or to a person indicated by them. A perishable article, or an article the cost of the custody of which is not commensurate with its value, may be sold by the person who found it with the receipt of written evidence certifying the amount received. The money received from the sale of the found article shall be subject to safe custody or returned to the person who has the right to receive the article, or to transfer into the ownership of other persons in accordance with the procedure and on the conditions established for that article itself.
The person who found a article shall be liable for its loss or destruction only in the case of his intention or gross neglect, and within the limits of the value of the article.
4. When, upon expiry of six months from the moment of the report on finding to the militia or the local executive body, the person who has the right to receive the lost object is not identified and does not declare his right with respect to the article to the person who found it or to militia, or to the local executive body, the person who found the object shall acquire the right to own it.
When the person who found an article refuses to acquire the found article into ownership, then it shall be transferred to communal ownership.
5. The person who found and returned an article to the person who is authorized to receive it, shall have the right to receive from that person, and in the case of the transfer of the article into the communal property, from the relevant local executive body, compensation for the unavoidable expenses, associated with the storage, submission, sale of the object, and the costs of identifying the person authorized to receive it.
6. A person who found an article shall have the right to receive an award from the person authorized to receive it, in an amount of thirty per cent of the value of the object. When the found object article a value only for the person who is authorized to receive it, then the amount of the award shall be determined in accordance with an appraisal carried out by the parties.
The right to an award shall not arise if the person who found the object does not execute his obligation to report on the finding, or where he committed other actions in order to conceal the finding.
Footnote. Article 245 as amended by the Laws of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005); dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 246. Unattended animals
1. A person who detained unattended or stray cattle and other domestic or tame animals shall be obliged to return them to the owner, and if he or his location are unknown, not later than within three days from the moment of such detention, to report on the found animals to the internal affairs bodies or the local executive bodies cities of the republican status, capitals, districts, cities of regional status which shall adopt measures to find the owner.
During the period of the search for the animals' owner, they may be left by the person who detained the animals for his maintenance and use, or turned in by him to another person who has sufficient facilities for their maintenance and use. Upon the request of the person who detained the animals, the local executive body shall find a person who has the required conditions for their maintenance and use, and convey to him the animals.
2. The person who detained animals and the person to whom they are transferred for maintenance and use shall be responsible for the death and damage to the animals only if their guilt exists, and only for the value of those animals.
3. If within six months from the moment of a report on the detention of working and large cattle, and two months for any other domestic animals, their owner is not identified and does not declare his right to them, the right to own those animals shall be transferred to the person with whom they stayed for their maintenance and use.
In the case of refusal of that person to accept the ownership of the animals maintained by him, they shall become communal property and shall be used in accordance with the procedure determined by the relevant local executive body.
4. In the case of return of the animals to the owner, the person who detained the animals and the person with whom they stayed for maintenance and use shall have the right to receive from that owner compensation for the expenses associated with the maintenance of the animals, with reckoning the benefits derived from their use.
5. The person who detained unattended or stray cattle, and other domestic or tame animals , shall have the right to claim from their owner the payment of a reward in accordance with paragraph 6 of Article 245 of this Code.
6. In the event that the former owner of the animals arrives after their transfer into the ownership of any other person, the owner shall have the right, in a case where circumstances are present which indicate attachment of the animals to the original owner, or cruel or other
improper treatment of them by the new owner, to require their return to him on the conditions to be established by an agreement with the new owner, and if they fail to agree, through the court.
Footnote. Article 246 as amended by the Laws of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005); dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 247. Treasure Trove
1. A treasure-trove, which is money or any other valuables hidden in the earth or concealed by any other method, the owner of which may not be identified or, by virtue of legislation lost the right to it, shall become the property, in equal shares, of the owner of the land plot or the owner of the immovable asset in which the treasure-trove was hidden and of the person who found the treasure-trove, unless the agreement between them establishes otherwise.
In a case of the finding of a treasure trove by a person who conducts excavations or research for valuables without the approval of the user of the land plot or the owner of the immovable property where the treasure-trove was hidden, the treasure-trove shall be subject to transfer to that owner.
2. In the case of finding a treasure-trove which contains articles which are memorials of historical or cultural value, they shall be subject to transfer to the ownership of the Republic of Kazakhstan. In that instance, the user of the land plot or the owner of the immovable property in which such treasure-trove has been found, and the person who found the treasure-trove, shall have the right to receive a reward in the amount of fifty per cent of the value of that treasure-trove. The reward shall be distributed between those persons subject to the rules stipulated in paragraph 1 of this Article.
Footnote. Article 247 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 248. The Acquisition of Property Confiscated from the Owner
If a person, in accordance with the procedure and under the conditions stipulated in legislative acts, acquired property confiscated from the owner, on a legitimate basis that person shall acquire the right to own the property.
Chapter 14. Cessation of the Right to Own and of Other Corporeal Rights
Article 249. The Basis for the Cessation of the Right to Own
1. The right of ownership shall cease after the alienation by the owner of his property to other persons, the refusal by the owner of the right to own, the death or destruction of property, and the removal of the right to own the property in any other cases stipulated in legislative acts.
2. Compulsory confiscation from an owner of his property shall not be allowed except in the following cases:
1) imposition of a claim upon the assets based on the liability of the owner; 2) compulsory alienation of assets which by virtue of legislative acts may not belong to
that person; 3) requisition; 4) confiscation; 5) alienation of immovable assets in connection with the reservation of a land plot; 6) purchase of ownerless cultural or historic valuables; 7) in any other cases stipulated in this Code; 8) sale of property at public auctions by court decision in the event that it is impossible to
divide common property or divide a share out of it in accordance with Article 218 of this Code.
3. The assets which are in state ownership shall be alienated into private property: 1) of citizens and legal entities, in the cases, on the conditions and in accordance with the
procedure stipulated in the legislative acts concerning the state property; 2) by way of transferring the state property objects to the payment of the carter capital of
legal entities; 3) in the other cases strictly provided by the laws of the Republic of Kazakhstan.
3-1) The property, which may be publicly owned only according to the Laws of the Republic of Kazakhstan, as well as the publicly owned property and which cannot be subject to alienation in accordance with the acts of the President of the Republic of Kazakhstan.
4. In the case of adoption of the Law of the Republic of Kazakhstan concerning conversion into state ownership of the property which is in private ownership of citizens and legal entities (nationalization), their losses shall be compensated in accordance with the procedure stipulated in Article 266 of this Code.
Footnote. Article 249 as amended by the Laws of the Republic of Kazakhstan dated 11.12.2008 No. 102-IV (the order of enforcement see Art. 2); dated 01.03.2011 No. 414-IV ( shall be enforced from the date of its official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 250. The Refusal of the Right to Own
A citizen or a legal entity may refuse the right of ownership to the property belonging to him by announcing this either orally or in writing or by performing other actions (inaction)
that definitely prove his removal from possession, use and disposal of property without the intention to retain any rights to this property.
The refusal of the right to own must be lawful, voluntary and indicating that the owner refuses to own, use and dispose the property.
The refusal of the right to own shall be the will of the owner. The state and its bodies shall have no right to refuse the right of ownership, except for the cases established by law.
The refusal of the right to own shall not entail termination of the owner's rights and obligations with respect to the relevant property until the acquisition of the ownership right to the property by another person.
Footnote. Article 250 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 251. Imposition of a Claim on the Assets of an Owner
1. The imposition of a claim upon assets based on the liability of the owner shall be carried out in a judicial procedure, unless it is otherwise stipulated by the legislative acts of the Republic of Kazakhstan or the contract.
2. The owner's right to own the assets upon which a claim was imposed shall cease from the moment of the emergence of the right to own the confiscated assets by the person to whom the right to own transfers in accordance with the procedure stipulated in the legislation.
Footnote. Article 251 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 252. Cessation of the Right to Own of a Person to whom by Virtue of Legislative Acts the Assets May not Belong
1. If due to reasons allowed by legislative acts a person came into ownerships of the articles which may not belong to him by virtue of legislative acts, that property must be alienated by the owner within one year from the moment of the acquisition of the right of ownership of that property, unless other period is specified in legislative acts. In a 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 compensation to the owner for the value of the assets, less the expenditures associated with their alienation.
2. When a citizen or a legal entity owns an object for which special permission is required , on the grounds allowed by the legislative acts, and its issue to the owner is denied, that object 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 cases of natural calamities, accidents, epizootic epidemics, and under any other circumstances which have an extraordinary nature, property may be requisitioned in the interests of the society upon the resolution of the state bodies from an owner in accordance with the procedure and on the conditions established by legislative acts, with the payment to him of the value of the property (requisition).
2. The evaluation on the basis of which the owner is reimbursed for the value of the requisitioned property may be challenged by the owner in a judicial procedure.
3. A person whose assets are requisitioned shall have the right to claim through the court the return to him of the remaining assets, after the cessation of the effect of the circumstances in relation to which the requisition took place.
Footnote. Article 253 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Article 254. Confiscation
In the cases stipulated by the legislative acts of the Republic of Kazakhstan, property may be confiscated without compensation from the owner in judicial procedure in the form of a sanction for the commitment of an administrative or criminal offense (confiscation).
Footnote. Article 254 in the new wording of the Law of the Republic of Kazakhstan dated 03.07.2014 № 227-V (shall be enforced from 01.01.2015).
Article 255. Cessation of the Right to Own Immovable Property in Relation to the Reservation of Land and Other Natural Resources
Footnote. The title of the Article 255 is in the wording of the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV(shall be enforced upon expiry of ten calendar days after its official publication).
1. The termination of the right to own immovable property due to a decision by a state body which is not directly aimed at the confiscation of 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 cases in accordance with the procedure established by the legislative acts, with the granting to the owner of equally valuable assets and the reimbursement of any other losses incurred, or refunding to him in full volume the losses inflicted by the termination of the right to own.
2. In the case of a disagreement by the owner with a decision which entails the termination of his right of ownership, it may not be effected prior to the settlement of the
dispute in a judicial procedure. When a dispute is considered, all the issues associated with the reimbursement of the owner for the inflicted losses shall be also settled.
3. The rules of this Article shall appropriately apply when the right of ownership of immovable assets is terminated in connection to the decision of a state body to reserve mining allotments, parts of the sea bed and any other plots on which assets are located.
Footnote. Article 255 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication).
Article 256. Withdrawal of Ownerless Cultural and Historic Assets
Footnote. The title of the Article 256 is in the wording of the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced upon expiry of ten calendar days after its official publication).
In the cases when an owner of cultural and historic valuables, which in accordance with legislation are recognized as especially valuable and protected by the State, carelessly keeps those valuables, and this threatens the loss by them of their significance, such valuables upon the decision of the court may be confiscated from the owner by the State by way of purchase or sale through a public auction.
When cultural valuables are purchased, the owner shall be compensated for their value in an amount established by agreement of the parties, and in the case of a dispute, by the court. In selling through an auction, the amount received from the sale shall be transferred to the owner, with subtractions for the auction costs.
Footnote. Article 256 as amended by the Law of the Republic of Kazakhstan dated 01.03.2001 No. 414-IV (shall be enforced upon expiry of ten calendar days after its official publication).
Article 257. The Appraisal of the Assets When Terminating the Right to Own
When terminating the right to own, assets shall be appraised on the basis of their market value, unless otherwise provided by the laws of the Republic of Kazakhstan.
Footnote. Article 257 as amended by the Law of the Republic of Kazakhstan dated 01.03.2001 No. 414- IV (shall be enforced upon expiry of ten calendar days after its official publication).
Article 258. Cessation of Material Rights which Belong to a Non-owner
Corporeal rights which belong to a non-owner shall terminate in accordance with the rules established by Articles 249-257 of this Code, and also upon the decision of the owner in
accordance with the procedure established by 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 Other Material Rights
Article 259. Recognition of the Right to Own
An owner shall have the right to claim recognition of his right to own.
Article 260. Owner’s Claim to Return Property from Somebody else’s Illegal Possession
An owner shall have the right to seek the return of his property from somebody's illegal possession.
Article 261. Claiming from a Bona Fide Buyer
1. When assets are purchased from a person who did not have the right to alienate them, for a price, and the buyer had no knowledge and should not have had knowledge of this (a bona fide buyer), then the owner shall have the right to claim that property from the buyer only in the case where the assets were lost by the owner, or by the person to whom the assets were transferred by the owner for possession, or if the assets were stolen from one of them, or went out of their possession in any other way outside their will.
2. If assets are purchased 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 any case.
3. Claiming assets on the grounds indicated in paragraph 1 of this Article shall not be allowed, provided the assets were sold in accordance with the procedure established for the execution of court decisions.
Footnote. Article 261 as amended by Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 262. Limitation on the Claims of Money and Securities
Money and also bearers' securities may not be claimed from a bona fide buyer.
Article 263. Settlements in Returning Things from Illegal Possession
1. In claiming assets on the basis of Articles 260 and 261 of this Code, the owner shall also have the right to claim from a mala fides 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 bona fide 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. A bona fide holder in his turn shall have the right to claim from the owner reimbursement of the necessary costs incurred in relation to the property from the time when income from the property became due to the owner. An mala fides holder shall have the right to obtain such reimbursement entirely or in part only in the cases in which the claim of the owner is recognized by the court as substantial.
2. An illegitimate possessor shall have the right to retain the improvements made by him, if they may be separated without damaging the article. When such separation of improvements is impossible, the bona fide holder shall have the right to claim reimbursement of costs incurred for the improvement, but not for more than the amount of the increase in the value of the object. The male fides holder shall have no 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 stipulated in Articles 259 - 264 of this Code shall also belong to a person who, although he is not the owner, holds the property under the economic management, operational management, permanent land use or on another basis which is stipulated in the legislative acts or the agreement. That person shall have the right to protect his possessions from the owner, as well.
Article 266. Protection of the Interests of the Owner when His Rights are Terminated for Reasons Stipulated in the Law
In the case of adoption by the Republic of Kazakhstan 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 Kazakhstan.
Article 267. Invalidity of the Acts of the Bodies of Power and of the Officials who Violate the Rights of an Owner and Other Corporeal Rights
Footnote. The title of Article 267 is in the wording of the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced upon expiry of ten calendar days after its official publication).
1. Where as a result of issuing a regulatory or individual act which does not comply with legislation, by a public body a 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 ownership, use and dispose of the property which belongs to them, such an act shall be recognized as invalid in a judicial procedure initiated 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 public bodies and of a local representative or executive body, which contradict the legislative acts shall not be applicable.
Losses caused to the owner as a result of issuance of these acts shall be compensated in full by the relevant state body from the funds of the corresponding budget in accordance with the rules of paragraph 1 of Article 922 of this Code.
Footnote. Article 267 as amended by the Law of the Republic of Kazakhstan dated 01.03.2001 No. 414-IV (shall be enforced upon expiry of ten calendar days after its official publication); dated 17.07.2015 № 333-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Section 3. Law of Obligations Subsection 1. General Provisions Concerning Obligations Chapter 16. The Definition and the Grounds for the Emergence of an Obligation
Article 268. Obligation
If due to an obligation, one person (the debtor) shall be obligated to commit for the benefit of another person (the creditor) a certain action, such as: transfer property, perform work, pay money, etc., or refrain from a certain action, and the creditor shall have the right to claim from the debtor to fulfill his obligations. The creditor shall be obliged to accept fulfillment from the debtor.
The provisions of this subsection apply to obligations, unless otherwise provided for in the Special Part of this Code.
Footnote. Article 268 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 269. Parties to an Obligation
1. (Is excluded). 2. Several persons may participate simultaneously in an obligation as either of the parties,
the creditor or the debtor. In those cases, a shared, joint or subsidiary obligation shall arise in accordance with the rules established by this Code (Articles 286 - 288).
The invalidity of the claims of a creditor toward one of the persons who participate in an obligation on the side of the debtor by itself shall not affect the creditor's claims toward other such persons, and this is also applicable as to the expiration of the term of the statute of limitations of the claim toward such a person.
3. If due to an obligation either of the parties has an obligation for the benefit of the other party, either first party shall be deemed to be a debtor of the other party with regard to what it is obliged to do to benefit the other, and simultaneously its creditor in what it has the right to claim from the other.
Footnote. Article 269 as amended by Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 270. Participants of an Obligation
1. Participants in an obligation shall be the parties (debtor and creditor) and third persons. 2. The persons who are bound by obligations or other legal relations with one of the
parties of an obligation shall act as third persons. 3. An obligation shall not create duties for third persons. In the cases stipulated by the
legislation or agreement of the parties, an obligation may give rise to the rights of third persons in respect of one or both parties to the obligation.
Article 271. The Grounds for the Emergence of Obligations
Obligations shall emerge from an agreement, infliction of damage or on any other grounds which are stipulated in Article 7 of this Code.
Chapter 17. Execution of an Obligation
Article 272. Proper Execution of an Obligation
Obligation must be fulfilled in a proper manner, in accordance with the conditions of the obligation and requirements of legislation, and if such conditions and requirements do not exist, then in accordance with the traditions of business practice or any other requirements which are usually applicable.
Article 273. Prohibition of a Unilateral Refusal to Execute an Obligation
A unilateral refusal to execute an obligation and a unilateral alteration of its conditions shall not be allowed, except for the cases stipulated by the legislation or agreement.
Article 274. Execution of an Obligation by Part
A creditor shall have the right not to accept the execution of an obligation by part, unless it is otherwise provided for by the conditions of the obligation, the legislation, or ensues from the traditions of business practice or the essence of the obligation.
Article 275. The Execution of an Obligation to the Proper Person
Unless it is otherwise provided for by an agreement of the parties or ensues from the tradition of business practice, or the essence of the obligation, when an obligation is executed the debtor shall have the right to claim evidence that the execution is accepted by the creditor himself or by a person authorized by the creditor, and the debtor shall bear the risk of the consequences of failure to present such a claim.
Article 276. The Execution of an Obligation by a Third Party
1. The execution of an obligation may be delegated, entirely or in part, to a third party, provided it is stipulated in legislation or the agreement, and also when the third party is related to one of the parties through an appropriate agreement.
2. When the obligation of a debtor to execute an obligation personally does not ensue from legislation, conditions of the obligation or from its essence, the creditor shall be obliged to accept the execution offered for the debtor by a third party.
3. The third party that bears the risk to lose its right to the property of a debtor (the right to use, own, mortgage 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 this Code concerning the assignment of a claim (Articles 339 - 347 of this Code) shall apply.
Article 277. The Term for the Execution of an Obligation
1. When an obligation stipulates or permits the identification of the date of its execution or a period of time during which it must be executed, the obligation shall be subject to execution on that date or appropriately at any moment within that period.
2. In the cases where an obligation does not stipulate the date for its execution and does not contain any conditions which allow the identification of that date, it must be executed within a reasonable period after the emergence of the obligation.
An obligation which is not executed within a reasonable term, and equally an obligation the term for the execution of which is identified as the moment of the claim, must be executed by the debtor within seven days from the date of the presentation by the creditor of the claim for its execution, unless the duty to execute by any other date ensues from legislation, the conditions of the obligation, traditions of business practice or the essence of the obligation.
Article 278. The Requirements of a Regular Execution of an Obligation
The obligations which are intended to be for a long term of execution must be executed regularly within reasonable periods for suchs of obligations (a day, ten days, a month, a quarter, etc.), unless it is otherwise stipulated in the legislation, or the conditions of the obligation, or ensues from the essence of the obligation, or the traditions of business practice.
Article 279. Premature Execution of an Obligation
1. A debtor shall have the right to execute an obligation prior to the deadline, unless it is otherwise stipulated in legislation or conditions of the obligation or ensues from its essence.
2. A premature execution of obligations related to entrepreneurial activities shall be allowed only in cases where the possibility of fulfilling the obligation prior to the deadline is stipulated in legislation, or the conditions of the obligation, or ensues from the tradition of business practice or the essence of the obligation.
Article 280. Information Concerning the Course of Execution of an Obligation
The legislation or conditions of an obligation may stipulate a duty of the debtor to report to the creditor upon the course of execution of the obligation.
Article 281. The Place of the Execution of an Obligation
If the place of the execution is not determined by legislation or the conditions of the obligation, and it does not clearly ensue from the essence of the obligation or traditions of business practice, the execution must be carried out as follows:
1) an obligation to transfer immovable property, - in the place where the property is situated;
2) an obligation to transfer goods or other property with the use of transport,- in the place of transfer of the goods to the first carrier for delivery to the creditor;
3) other obligations of an entrepreneur to transfer goods or other assets,- in the place of the manufacture or storage of the property, provided that the location is known to the creditor at the moment of the emergence of the obligation;
4) a monetary obligation - in the place of residence of the creditor at the moment of the emergence of the obligation, and if the creditor is a legal entity, - in the place where it is situated at the moment of the emergence of the obligation; if the creditor by the time of the execution of the obligation changed his place of residence or the place of its location and notified the debtor of it, - at the new place of residence or location of the creditor, with the charging of all the costs associated with the change of the place of the execution to his account;
5) with regard to any other obligations, - in the place of residence of the debtor, and if the debtor is a legal entity at the place of its location.
Footnote. Article 281 as amended by Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 282. Monetary Obligations
1.By force of money obligation one party (debtor) shall be obliged to pay money to another party (creditor), and the creditor shall have the right to demand from the debtor the implementation of his obligations to pay money (money loan and other obligations). Regulations on money obligations shall be applied to obligations to pay money on compensation of losses and payment of a penalty as well as obligations resulting from causing of harm or unjustifiable enrichment, unless another provided by this Code, legislative acts of the Republic of Kazakhstan or do not result from the subject of obligation.
Monetary obligations in the territory of the Republic of Kazakhstan must be expressed in the Tenge (Article 127 of this Code), except for the cases specified by legislative acts of the Republic of Kazakhstan.
The use of foreign currency, and also of payment documents in foreign currency when making payments on obligations in the territory of the Republic of Kazakhstan, shall be allowed in the cases and on the conditions defined by legislative acts of the Republic of Kazakhstan or in accordance with the procedure established by them.
The procedure and methods for making payments and transfers shall be established by the legislation of the Republic of Kazakhstan on payments and payment systems and shall be determined by the parties in the relevant contract.
2. The amount of payment made, insufficient for performance of the monetary obligation, in the absence of any other agreement of the parties, primarily repays the debt on the principal debt and remuneration (interest), principal debt and remuneration (interest) for the current period, and in the remainder - the penalty and costs of the creditor on receipt of performance.
Specifics of payments under bank loan agreements or on provision of microcredit are established by the banking legislation of the Republic of Kazakhstan or by the legislation of the Republic of Kazakhstan on microfinance organizations.
3. In long term obligations, the indexation of payments on the conditions specified by the parties may be indicated.
Footnote. Article 282 as amended by the Laws of the Republic of Kazakhstan dated July 11, 1997 No. 154; dated July 16, 1999 No. 436; dated December 24, 2001 No. 276 (shall be enforced from January 1, 2002); by the Law of the Republic of Kazakhstan dated July 10, 2003 No. 483 (shall be enforced from January 1, 2004); dated January 12, 2007 No. 225 ( shall be enforced from the date of its official publication); dated 10.02.2011 No. 406-IV (shall be enforced upon expiry of ten day after its first official publication); dated24.11.2015 № 422
-V (the order of enforcement see Art.2); dated 26.07.2016 № 12-VІ (shall be enforced upon expiry of thirty calendar days after the day its first official publication).
Article 283. Increase of the amounts paid for maintenance of a citizen
The amount paid on the monetary obligation directly for maintenance of a citizen ( compensation for harm caused to life or health, under the contract for life maintenance and others), increases annually proportionally to the average value of the forecast inflation level.
Footnote. Article 283 in the new wording of the Law of the Republic of Kazakhstan dated 27.04.2015 № 311-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 284. Execution of mutual duties
1. Mutual obligations must be executed by the parties simultaneously, unless otherwise follows from the legislation of the Republic of Kazakhstan, the contract, good business practices, the terms of the obligation or its essence.
2. In case of non-execution or improper execution of the obligation by one of the parties, the second party shall have the right to suspend the performance of its obligation or to refuse to execute this obligation and demand compensation for losses.
Footnote. Article 284 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 285. Execution of an Alternative Obligation
A debtor who is obliged to commit one of two or of several actions shall have the right to select among them, unless it otherwise ensues from legislation or conditions of the obligation.
Article 286. Execution of an Obligation in which there are Several Creditors or Several Debtors
When several creditors or several debtors participate in an obligation (obligation with a number of persons), then either of the creditors shall have the right to claim the execution of the obligation, and each of the debtors shall be obliged to execute the obligation in a share equal to others, unless it otherwise ensues from legislation or the conditions of the obligation (shared obligation).
Article 287. The Execution of a Joint Obligation
1. An obligation with a number of persons, by virtue of which each creditor has the right to claim, and each debtor is obliged to execute the obligation in full, shall be recognized as a joint obligation.
A joint obligation or a joint claim shall arise if it is provided for in the agreement or established by legislative acts, in particular, where the subject of the obligation is indivisible.
2. The duties of several debtors in respect to an obligation associated with entrepreneurial activity, as well as the claims of several creditors in such an obligation shall be recognized as joint ones, unless legislation or conditions of the obligation stipulate otherwise.
3. In the case of joint obligation of debtors, the creditor shall have the right to claim the execution both from all the debtors and from any one of them separately, and in this respect for full repayment and for part of the debt. The creditor who have not received complete satisfaction from one of the joint debtors shall have the right to claim the amount in arrears from the other joint debtors.
The joint debtors shall remain obliged until the obligation is executed in full. The execution of a joint obligation in full by one of the debtors shall release the other debtors from their execution to the creditor.
4. When claims are joint, any of the joint creditors shall have the right to present to the debtor the claim in full volume.
The execution of an obligation in full to one of the joint creditors shall release the debtor from execution to the other creditors.
5. In the case of a joint 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 joint claims, the debtor shall not have the right to make objections against the claims of one of the joint creditors, which are based on such relations of the debtor with another joint creditor, in which that creditor does not participate.
Footnote. Article 287 as amended by Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 288. The Execution of a Subsidiary Obligation
The legislative acts or conditions of an obligation between the creditor and the debtor may specify that, in the case of a failure by the principal debtor to satisfy the claim of the creditor to execute the obligation, that claim may be made to the other debtor (a subsidiary debtor) such part of it as is not executed.
Article 289. Regress Claims
1. A debtor who executed an obligation of another person shall have the right of return claim (regress) to that person in the amount of the obligation executed.
A debtor who failed to execute an obligation as a consequence of actions of a third party, shall have the right to claim compensation for the losses from that party.
2. A debtor who executed a joint obligation shall have the right to a return claim against 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 executed a joint obligation shall equally fall on that debtor and on the other co-debtors.
The rules of this paragraph shall apply appropriately when a joint obligation is terminated by offset of a counter claims of one of the debtors.
3. A joint creditor who received execution from a debtor shall be obliged to recompense the other creditors for the shares which are due to them, unless it otherwise ensues from relations between them.
Article 290. Certification of the Execution of Obligations
1. Upon the claim of a debtor, a creditor, when accepting an execution, shall be obliged to issue to him a written confirmation of receipt of the execution in full or in part.
When the debtor issues to the creditor a debt document to certify the obligation, then the creditor accepting the execution must return that document to the debtor. Where it is impossible to return, he must indicate that in the receipt which he issues.
The receipt may be substituted by an 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 a receipt for the execution, to return the debt document, or to indicate the impossibility of its return in the receipt, the debtor shall have the right delay execution. In that case the creditor shall be deemed to be delaying. Article 291. Fulfillment of the obligation to pay the debt
Footnote. Article 291 title in the wording of the Law of the Republic of Kazakhstan dated 02.07.2018 No. 166-VI (shall be enforced dated 01.07.2019).
1. A debtor in order to execute obligations shall have the right to place on the terms of depositing the money he owes, and securities - on the terms of custody in the name of a notary and in the cases established by legislative acts - in the name of the court, if the obligation may not be executed by the debtor as a result of the following:
1) absence of the creditor or the person who is authorized by him to accept the execution in the place where the obligation must be executed;
2) incapacity of the creditor and his not having a representative; 3) obvious lack of certainty as to who the creditor is with regard to the obligation,
particularly, in connection with a dispute about that between the creditor and other persons; 4) evasion by the creditor of acceptance of the execution, or any other delay on his behalf;
2. The placement of money or securities on the terms of depositing or custody in the name of notary or a court shall be deemed to be execution of an obligation.
A notary or a court in whose name money or securities are deposited, shall notify the creditors accordingly.
3. Peculiarities of fulfillment of certain obligations in the securities market, which cannot be fulfilled due to the grounds specified in paragraph 1 of this article, are established by the laws of the Republic of Kazakhstan.
Footnote. Article 291 as amended by Law of the Republic of Kazakhstan dated July 11, 1997 No. 154; dated March 2, 1998 No. 211; dated 02.07.2018 № 166-VI (shall be enforced dated 01.07.2019).
Chapter 18. Securing Execution of Obligations Paragraph 1. General Provisions
Article 292. Methods of Securing the Execution of Obligation
1. The execution of an obligation may be secured with damages, pledge, lien on the debtor's property, sureties, guarantee, advance payments, and other methods provided for by legislation or the agreement.
Methods of securing the execution of obligations concerning the securities shall be established by the legislative acts of the Republic of Kazakhstan, regulating the activity in the security market.
2. The invalidity of an agreement on securing an obligation shall not entail the invalidity of that obligation (the principal obligation).
3. The invalidity of the principal obligation shall entail the invalidity of the obligation which secures it.
4. Termination of the main obligation shall entail termination of the obligation securing it, unless otherwise provided by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 292 as amended by Law of the Republic of Kazakhstan dated 08.07.2005 No. 72 (the order of enforcement see Art. 2); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication); dated 24.11.2015 № 422-V (shall be enforced from 01.01.2016).
Paragraph 2. Forfeit
Article 293. The Definition of Forfeit
Damages (fine, penalty) shall be recognized as a monetary amount defined by legislation or agreement, which must be paid by a debtor to the creditor in the case of failure to execute,
or improper execution of an obligation, in particular, in the case of a delay in execution. Upon the claim to pay the damages, the creditor shall not be obliged to prove losses caused to him.
Footnote. Article 293 as amended by Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 294. The Form of an Agreement on Forfeit
The agreement on damages must be committed in writing, irrespective of the form of the principal obligation.
Non-compliance with the written form shall entail the nullity of the penalty agreement. Footnote. Article 294 as amended by the Law of the Republic of Kazakhstan dated
27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 295. Legal Forfeit
1. A creditor shall have the right to claim the payment of damages as determined by legislation (legal damages), irrespective of whether the obligation for its payment is stipulated in the agreement of the parties.
2. The amount of the legal damages may be increased by agreement of the parties, provided 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 the improperly executed obligation.
Article 297. Reduction of the amount of penalty
If the penalty (fine, fee) to be paid is excessively large as compared to the losses of the creditor, the court, at the request of the debtor, shall have the right to reduce the penalty (fine, fee), considering the degree of fulfillment of the obligation by the debtor and the interests of the debtor and creditor that deserve attention.
Footnote. Article 297 in the new wording of the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 298. The Grounds for Levying Forfeit
Damages shall be levied for failure to execute or for improper execution of an obligation, when the conditions exist for holding the debtor responsible for violation of the obligation ( Article 359 of this Code).
Paragraph 3. Pledge
Article 299. Definition of Pledge
1. Pledge shall be recognized as a method of securing the execution of an obligation, by which a creditor (pledge holder) has the right, in the case of failure by the debtor to execute the obligation secured with the pledge, to receive satisfaction from the value of the pledged property, in a priority procedure before the other creditors of the person to whom that property belongs (pledger), with the exceptions established by this Code.
The pledge holder shall have the right to receive on the same principles as satisfaction 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 pledge holder.
2. The pledge of enterprises, buildings, installations, apartments, rights to land plots and any other immovable property (mortgage) shall be regulated by the Law of the Republic of Kazakhstan Concerning Mortgage of Immovables. The general rules concerning pledge, which are contained in this Code shall apply to mortgage in the cases where the Law of the Republic of Kazakhstan Concerning Mortgage does not stipulate any other rules.
3. The pledge of the air and sea vessels, vessels of domestic water travel, vessels of river and sea sailing (mortgage of the vessel) which are subject to state registration, shall be regulated by the special legislative acts of the Republic of Kazakhstan. The general rules concerning pledge, which are contained in this Code shall apply to mortgage of the vessel in the cases where the Law of the Republic of Kazakhstan Concerning Mortgage does not stipulate any other rules.
The requirements of the part one of this Article shall also extend to the building sea vessels, vessels of domestic water travel, vessels of river and sea sailing.
Footnote. Article 299 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated January 17, 2002 No. 285.
Article 300. The grounds for the emergence of pledge
1. Pledge shall arise by virtue of an agreement. Pledge shall arise also on the basis of legislative acts when the events indicated therein take place, provided the legislative acts specify what property is recognized as held under pledge and which obligations are secured.
2. The rules of this Code concerning the pledge, which arises by virtue of an agreement, shall appropriately apply to a pledge which arises on the basis of legislative acts, unless legislative acts stipulate otherwise.
Article 301. Subjects of a Pledge
1. Any property including objects and property rights (claims), except for the objects which are excluded from circulation (paragraph 2 of Article 116 of this Code), claims which are inseparably associated with the person of the creditor, in particular the claims of alimony, compensation for harm caused to life or health, and other rights the assignment of which to any other person is prohibited by legislative acts, may be subject of a pledge.
2. The right to pledge may be applied by agreement to the property which will come into ownership or under business authority of the pledger in the future.
3. Pledge of certains 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. (is excluded dated January 12, 2007 No. 225). 5. (is excluded). Footnote. Article 301 as amended by the Laws of the Republic of Kazakhstan dated July
11, 1997 No. 154; dated March 2, 1998 No. 211; dated July 8, 2005 No. 72 (the order of enforcement see Art. 2); dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 302. Claims which are secured by Pledge
1. Unless it is otherwise stipulated by the agreement or legislative acts, the pledge shall secure a claim in the volume which it has at the moment of the actual satisfaction, including remuneration (interest), and compensation of losses incurred by delay in the execution, damages (fine, penalty), the necessary expenses associated with the maintenance of the pledged property, and also the compensation for the costs associated with the collection.
2. Pledge may be established in respect to the claims which will arise in the future, provided the parties agree on the amount of such claims, which is secured by the pledge.
Footnote. Article 302 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154
Article 303.s of Pledge
1. Mortgage is a of pledge under which the pledged property remains in the possession and use of the pledger or a third person.
Enterprises, structures, buildings, installations, apartments in blocks of apartments, transport vehicles, outer space objects, goods in circulation and other property which is not excluded from the civil circulation, may be subject to mortgage.
Separable fruits may be subject to mortgage only on the condition that they do not become subject to rights 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 objects shall be subject to registration at the bodies which carry out the registration of such objects.
2. Pawning shall be the of pledge whereby the pledged property is transferred by the pledger into the possession of the pledge holder.
With the consent of the pledgee, the pledged object may be left with the pledgee under the pledgee's lock. The object of pledge may be left in the possession of the pledgor with the application of signs evidencing the pledge (hard pledge).
3. In the pledge of rights, the property rights which may be alienated may be subject to pledge, and in particular, the leasing rights to enterprises, structures, buildings, installations, the right to a share in the assets of a business partnership, debt claims, copyright, inventor's rights and other property rights.
The pledge of the rights to a land plot and also of the rights to other natural resources shall be allowed within the limits and under the conditions stipulated in the legislation concerning land and any other natural resources.
A term right may be subject to pledge only prior to the expiry of the term of its validity. The debtor of a pledged right must be notified of the pledge.
When a pledged right is confirmed by a document, the pledge agreement may be documented in the form of a transfer of the document which establishes the right.
3-1. In the pledge of the bank deposit, the rights of the depositor according to the bank deposit agreement shall be pledged. Pledger-depositor shall be obliged to inform bank in writing about the pledge of the bank deposit, indicating the records of the pledgeholder.
4. Pledge of securities shall be carried out in accordance with the legislation concerning the Security Market
5. Unless it is otherwise stipulated in the pledge agreement, money which are the pledged object shall be placed in a bank.
Remuneration (interest) owing on those funds shall belong to the pledger, unless otherwise specified by the agreement.
Money may be passed to the pledger or another person subject to terms limiting the opportunity of using the pledged money by that person (keeping in the bank cash box, box of the safe separate premise for keeping). Non-fulfillment of the terms limiting the opportunity of using the pledged money by the person shall be the basis for his liability for unjust enrichment from the moment he received money.
Footnote. Article 303 as amended by the Laws of the Republic of Kazakhstan dated 11.07.1997 No. 154; dated 08.07.2005 No. 72 (the order of enforcement see Art. 2); dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); No. 156-VI dated 24.05.2018 (shall be enforced upon the expiration of ten calendar days after the date of its first official publication).
Article 304. The Pledge of the Property which is in Common Ownership
The property which constitutes common property may be pledged only with the consent of all the owners. The right to a share in common property may be an independent subject of the pledge.
Article 305. A Pledger
1. Both the debtor and a third party may be pledgers. 2. The owner of an entity, or with the consent of the owner, any other person who has in
respect to that entity the right of business authority, may be pledgers, unless it is otherwise provided for by legislative acts.
3. A person to whom the right to be pledged belongs may be a pledger of the right. The pledging of the right to lease or any other right to somebody else's object shall not be
allowed without consent of its owner, or of the person who has, in respect to that object the right of business authority, when legislative acts or an agreement prohibit the alienation of that right without consent of specified persons.
Article 306. Insuring Pledged Assets
1. An agreement or legislative acts may impose upon the pledge holder the obligation to insure the pledged property transferred to his possession.
Insuring of pledged assets which remain in the use of the pledger shall be imposed upon the latter.
2. In the case of the occurrence of an insurable event, the right to claim the assets pledged in accordance with the insurance agreement shall be acquired by the pledger only in the case of the refusal of the claim by the pledge holder.
When the amount of insurance compensation exceeds the amount of the obligation secured with the pledge, the pledge holder shall be obliged, within three banking days from the moment of its receipt, to transfer the difference to the pledger.
Footnote. Article 306 as amended by Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 307. Contents and the Form of the Pledge Assets
1. A pledge agreement must specify the subject of the pledge, the substance, amount or maximum amount and term of performance of the obligation secured by the pledge. In the event that the pledged property is real estate, the pledge agreement shall specify its assessment.
Movable property and (or) certain categories of movable property (including machinery and inventories) that are the subject of pledge may have a general description of the subject of pledge without the requirement of a specific description of the pledge and without assessment of the subject of pledge.
A pledge agreement must also contain an indication of which party has possession of the pledged property and the admissibility of its use.
The assessment of the pledged property is expressed in tenge and may be determined by agreement of the parties, unless otherwise stipulated by the laws of the Republic of Kazakhstan. Valuation of the pledged item securing the obligation in foreign currency is expressed in tenge and the currency of the obligation at the market exchange rate as of the date of conclusion of the pledge agreement.
2. A pledge agreement must be concluded in writing. 3. Failure to comply with the rules contained in paragraphs 1 and 2 of this Article shall
entail the nullity of the pledge agreement. Footnote. Article 307 is in the wording of the Law of the Republic of Kazakhstan dated
10.02.2011 No. 406-IV (shall be enforced upon expiry of ten calendar days after its official publication); as amended by the Laws of the Republic of Kazakhstan dated 29.12.2014 № 269-V (shall be enforced from 01.01.2015); dated 22.04.2015 № 308-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 24.05.2018 № 156-VI (shall be enforced upon expiration of ten calendar days after the day of its first official publication).
Article 308. Registration of Pledge
1. Pledge of property which is subject to state registration must be registered with the body which carries out the registration of that property, unless otherwise arises out of this Code.
Pledge of immovable property which is subject to state registration must be registered with the body which carries out the registration of immovable property.
2. The change of the subject of pledge, as well as other changes in cases established by legislative acts of the Republic of Kazakhstan shall be subject to registration.
Changes in the pledge that are not subject to mandatory registration may be registered at the request of the participants.
3. A record concerning the termination of pledge shall be registered when: 1) registering the termination of pledge on the basis of the application of the pledger in
view of implementation of the basic obligation; 2) levying of execution on the subject of the pledge in the order, established by the
legislative acts of the Republic of Kazakhstan; 3) registering the termination of pledge in view of termination of the pledge agreement; 4) termination of the pledge otherwise, provided by the Article 322 of this Code. 4. A pledger who executed an obligation secured with a pledge shall have the right to
claim the annulment of the note of the pledge from the register. Upon the claim of the pledger , the pledge holder shall be obliged to present to the body which carries out the registration the necessary documents and written applications. In the case of failure to execute, or an untimely execution by the pledge holder of those obligations, the pledger shall have the right to claim compensation of losses inflicted on him.
Footnote. Article 308 is in the wording of the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication); as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49- VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 309. Assets to which the Rights of a Pledge Holder Apply
1. Unless it is otherwise stipulated in the agreement or legislative acts, the rights of the pledge holder (the right to pledge) in respect to the object which is pledged object, shall apply to its accessories and inseparable goods.
In the cases stipulated in the contract or legislative acts, the right of pledge may extend to the separable derived benefits, products and incomes received as a result of the use of the pledged property, as well as assets acquired and the assets replaced in the future.
If the subject of the pledge is movable property, the right of pledge extends to the detachable fruits, products and income (including assets acquired in the future and replaced assets) received as a result of its use, unless otherwise provided by the contract.
In this case, the right of pledge applies to the separated fruits, products and income ( including assets acquired in the future and replaced assets) only to the extent of the claim, which it does not provide pledged movable property at the time of its actual satisfaction.
2. In the case of mortgage of an enterprise or any other property complex as a whole, the right of pledge shall apply to all the property, both movable and immovable, including the right to claim and exclusive rights, including those acquired during the mortgage, unless it is otherwise stipulated in legislative acts or the agreement.
3. Mortgage of a building or installation shall be allowed only with a simultaneous mortgage through the same agreement of the land plot on which the building or installation is located, or of the part of the plot which is functionally related to the mortgaged facility.
Footnote. Article 309 as amended by the Law of the Republic of Kazakhstan dated 29.12.2014 № 269-V (shall be enforced from 01.01.2015); No. 156-VI dated 24.05.2018 ( shall be enforced upon the expiration of ten calendar days after the date of its first official publication).
Article 310. The Emergence of the Right to Pledge
1. Unless it is otherwise stipulated in the pledge agreement, the right to pledge shall arise in respect to the property, the pledging of which is subject to registration, - from the moment of the registration of the agreement, and in respect of other property, - from the moment of the transfer of that property to the pledge holder, and where it is not subject to transfer, from the moment of concluding the pledge agreement.
2. The right to pledge goods in circulation shall arise in accordance with the rules of paragraph 2 of Article 327 of this Code.
Article 311. Subsequent Pledge (Re-pledge)
1. When pledged property becomes subject to another pledge to secure any other claims ( re-pledge), then the claims of the subsequent pledge holder shall be satisfied from the value of the pledged object after the satisfaction of the claims of previous pledge holders.
2. Re-pledge shall be allowed unless it is prohibited by the previous pledge agreements. 3. The pledger shall be obliged to communicate to each subsequent pledge holder
information concerning all the existing pledges of that property and he shall be liable for losses inflicted upon the pledge holders by failure to execute that duty.
Footnote. Article 311 is in the wording of the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated January 12, 2007 No. 225 (shall be enforced from the date of its first official publication).
Article 312. Maintenance and Safety of Pledged Assets
1. The pledger or the pledge holder, depending on which of them keeps the pledged property, unless it is otherwise stipulated in legislative acts or the agreement, shall be obliged as follows:
1) to take measures which are required to ensure the safety of pledged property including for its protection from encroachments and claims by third persons;
2) immediately notify the other party of the emergence of a threat of losing or damaging pledged property.
2. The pledge holder and the pledger shall have the right to check against documents and to verify the physical presence, size, status and conditions of storage of pledged assets which are kept by the counter party.
3. In case of a gross violation by the pledge holder of the obligations indicated in paragraph 1 of this Article, which creates the threat of loss or damage to pledged property, the pledger shall have the right to claim a premature termination of the pledge.
Article 313. The Consequences of a Loss or Damage to Pledged Assets
1. A pledger shall bear the risk of an accidental destruction or damage to pledged assets, unless it is otherwise stipulated in the pledge agreement.
2. A pledge holder shall be responsible for a full or partial loss or damage of the pledged object entrusted to him, unless he proves that he may be exempt from the responsibility in accordance with Article 359 of this Code.
3. A pledge holder shall be responsible for the loss of a pledged object in the amount of its actual value, and for any damage to it, - in the amount by which that value was reduced, irrespective of the amount at which the pledged object was evaluated when it was transferred to the pledge holder.
4. If as a result of damage to a pledged object, it has changed so much that it may not be used in accordance with its direct designation, the pledger shall have the right to reject it and to claim compensation for its loss.
5. The agreement may envisage the obligation of the pledge holder to also compensate the pledger for any other losses inflicted by the loss or damage to the pledged object.
6. A pledger who is the debtor in an obligation secured with pledge shall have the right to offset a claim of compensation for losses caused by the loss or damage to the pledged object against the pledge holder, as repayment of the obligation secured with the pledge.
Article 314. Replacement and Restitution of a Pledged Item
1. The replacement of a pledged object shall be allowed with the consent of the pledge holder, unless legislative acts or the agreement stipulate otherwise.
2. When a pledged object is destroyed or damaged, or the right to own or the right of business authority of it ceased on the grounds established by legislative acts, the pledger shall have the right within a reasonable period to restore the pledged object or replace it with any other equally valued asset.
Article 315. Use and Disposal of Pledged Objects
1. A pledger shall have the right, unless it is otherwise stipulated in the agreement and does not ensue from the essence of the pledge, to use the pledged object in accordance with its designation, in particular, to derive produce and income from it.
2. Unless it is otherwise stipulated in legislative acts or the agreement, and does not ensue from the essence of the pledge, the pledger shall have the right to alienate pledged objects into ownership, business authority or operational management, to transfer it into lease or charge-free use to another person, or in any other way dispose of it, only with the approval of the pledge holder.
The agreement limiting the right of the pledger to bequeath the pledged property shall be void.
3. A pledge holder shall have the right to use the pledged object entrusted to him, only in the cases which are stipulated by the agreement, and regularly present to the pledger reports on its use. In accordance with the agreement, the pledge holder may be entrusted with the duty to derive fruit and income from the pledged object for the purpose of repaying the principal obligation or in the interests of the pledger.
Footnote. Article 315 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 316. Protection by a Pledge Holder of His Rights to Pledged Items
1. A pledge holder who held or should have held pledged property, shall have the right to claim it from anybody else's illegal possession including from the pledger himself.
2. In the cases where, in accordance with the agreement, the pledge holder is granted the right to use the pledged object entrusted to him, he may claim from other persons, including from the pledger the elimination of any violations of his right, even though those violations are not related to deprivation of possession.
Article 317. The Grounds of the Imposition of Claims on Pledged Property
1. Claims on pledged property for the satisfaction of claims of the pledge holder (creditor) may be imposed in the case of a failure to execute or improper execution by the debtor of the obligation secured with the pledge for which he is liable.
2. The imposition of a claim on pledged property maybe denied when the violation committed by the debtor of the obligation which is secured with the pledge, is extremely insignificant, and the amount of the claim of the pledge holder as a result of that is clearly disproportionate with the value of the pledged property.
Violation of the obligation secured by the pledge shall be extremely insignificant and the size of the claims of the pledge holder shall be clearly disproportionate to the value of the pledged property, with the simultaneous presence of the following conditions:
1) the amount of the unexecuted obligation (excluding the penalty (fine, fee) shall be less than ten percent of the value of the pledged property determined by the parties in the pledge agreement;
2) the period for the delay in performance of the obligation secured by the pledge shall be less than three months.
Footnote. Article 317 as amended by the Law of the Republic of Kazakhstan dated 17.07.2015 № 333-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 318. The Procedure for the Imposition of Claims on Pledged Items
1. Satisfaction of a claim of a pledger out of the value of pledged property shall be carried out in accordance with the judicial procedure, unless it is otherwise stipulated in this Code or other legislative acts or the agreement.
2. In cases stipulated by the Pledge Agreement, as well as the present Code and other legislative acts, the Pledgee shall be entitled to independently dispose of the property pledged as collateral out of court by holding auctions (auctions). The same right shall be vested in the pledgee bank for the sale of the pledged object, securing the monetary loan. Extrajudicial sale of pledged immovable property is not allowed in cases stipulated by the legislative act of the Republic of Kazakhstan on mortgage of immovable property.
Peculiarities of foreclosure on the subject of pledge, which is a security for the loan within the framework of measures to ensure the stability of the financial system, are established by the laws of the Republic of Kazakhstan.
Footnote. Article 318 as amended by the Law of the Republic of Kazakhstan dated 10.02.2011 No. 406-IV (shall be enforced upon expiry of ten calendar days after its official publication); dated 02.07.2018 № 168-VI (for the procedure of implementation, see Art. 2).
Article 319. Sale of Pledged Property
1. The sale of pledged property upon which in accordance with Article 20 of this Code a claim is imposed, shall be carried out by way of selling through public auctions in accordance with the procedure which is established by the procedural legislation, unless legislative acts stipulate any other procedure.
1-1. In the pledge of money and rights (requirements) on the money liabilities, the selling of that pledged property shall be conducted by way of transferring of money to the pledge holder, which is the subject of the pledge or which is owed to the pledged rights ( requirements) for the money liabilities, and when the transfer of money at the moment of levying of execution for the subject of pledge is impossible - by way of transferring to the pledge holder of the right of the pledger for the subject of pledge.
If a sum of money, which is the subject of the pledge or which is owed to the pledged rights (requirements) for the money liabilities, exceeds the size of the requirement of the pledge holder secured by pledge, the margin shall be returned to the pledger. If a sum of money is insufficient to cover the requirements of the pledger, he shall have the right, in the absence of another instruction in the legislative acts or in the agreement, to take the deficit from the other property of the debtor, without using the advantage, based on the pledge.
2. The peculiarities of extrajudicial sale of pledged property are established by the present Code and the Law on Mortgages of Real Estate. Rules and procedures established by the Law on Real Estate Mortgage for the purpose of selling mortgages shall apply to the sale of property in the course of the execution of other types of pledge, unless otherwise stipulated by this Code.
3. Upon the request of the pledger, the court shall have the right to postpone the same in the public auction in the decision on foreclosure on the pledged property, for a period of up to one year for the pledged property of individuals and for a period of up to one month for the pledged property of legal entities. The postponement shall not affect the rights and obligations of the parties to the obligation secured by the pledge of this property, and shall not release the debtor from reimbursement of the losses of the creditor that have increased during the postponement and the penalty amounts.
4. Any legal entities and citizens, including the pledger and the pledge holder, shall have the right to participate in the auction.
Prior to the beginning of the auction, the court or any nominated person (Article 320 of this Code) shall have the right to require the payment of a guarantee contribution from each of the participants in the auction. The guarantee contributions shall be subject to refund after the auction. A guarantee contribution by a participant who won the auction shall be included in the amount of the final price. A guarantee contribution of a participant who won the auction but who did not pay the final price shall not be refunded and it shall remain at the disposal of the court or the nominated person.
5. When a tender is declared unsuccessful due to the participation of less than two buyers, the mortgagee is entitled to either turn the pledged property into its ownership at its current appraised value established by a court decision or by a trustee on the basis of the appraisal report prepared by the appraiser, or demand the appointment of new tenders.
6. When the amount which is received from selling pledged property is insufficient to cover the claims of the pledge holder, he shall have the right, in the absence of another indication in the legislative acts or agreement, to receive the amount of arrears from other property of the debtor without using the advantages based on the pledge.
When the amount received in selling pledged property exceeds the amount of the claim of the pledge holder, secured with the pledge, the difference shall be returned to the pledger.
7. The debtor and the pledger who is a third party (collateral guarantor) shall have the right at any time before the sale of the subject of the pledge to terminate the foreclosure and
its implementation, having executed the obligation secured by the pledge or that part thereof whose execution is overdue. An agreement restricting this right shall be void.
Footnote. Article 319 as amended by the Laws of the Republic of Kazakhstan dated 08.11.2000 No. 96, dated 12.01.2007 No. 225 (shall be enforced from the day of its official publication), dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 27.02.2017 № 49- VI (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 10.01.2018 № 134-VI (shall be enforced upon the expiration of six months after the date of its first official publication); dated 02.07.2018 № 168-VI (shall be enforced upon the expiration of ten calendar days after the date of its first official publication) .
Article 320. Sale of the Pledged Property in a Compulsory Non-judicial Procedure
1. When disposing a pledged property in a compulsory non-judicial procedure, the auction shall be carried out by the nominated person, who may be a legal entity or a citizen who has the power of attorney from the pledge holder, to sell the pledged property in the case of violation of the obligation secured with the pledge.
2. The nominated person shall carry out the following procedure: 1) compile notification to the pledger of the non-execution of the obligations and register
it at the body where the pledge agreement was registered; 2) in the case where the claims which ensue from the notice are not satisfied, but not
earlier than two months after the moment of its dispatch to the pledger, compile the notice of auction of the pledged property, register it with the body where the pledge agreement was registered, and hand it to pledger;
3) officially publish the announcement of the auction in the local press. Footnote. Article 320 as amended by the Laws of the Republic of Kazakhstan dated
08.11.2000 No. 96; dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication).
Article 321. Premature Execution of an Obligation which is Secured with the Pledge and the Imposition of a Claim upon the Pledged Property
1. A pledge holder shall have the right to claim a premature execution of obligations secured with pledge in the following cases:
1) when the pledged object went out of possession of the pledger with whom it was left not in accordance with the provisions of the pledge agreement;
2) violation by the pledger of the rules for the replacement of pledged property (Article 314 of this Code);
3) the loss of the pledged object under the circumstances for which the pledge holder is not responsible (paragraph 2 of Article 313 of this Code), unless the pledger exercises the right stipulated in paragraph 2 of Article 314 of this Code.
4) addressing the levy concerning the pledge in order to fulfill obligations of the pledger on enforcement documents to the third persons, not having advantages in the requirements of the pledge holder, if the pledger hasn’t any other property.
2. A pledge holder shall have the right to claim a premature execution of the obligation secured with pledge, and if his claim is not satisfied, to impose the claim upon the pledged object in the following cases:
1) violation by the pledger of the rules concerning subsequent pledge; 2) non-execution by the pledger of the obligations stipulated in sub-paragraphs 1 and 2 of
paragraph 1 and paragraph 2 of Article 312 of this Code; 3) violation by the pledger of the rules for disposal of pledged property (paragraph 2 of
Article 315 of this Code). 4) violation by the pledger of the obligation secured by a pledge (Articles 317, 720 and
722 of this Code, Article 20 of the Law of the Republic of Kazakhstan dated December 23, 1995 "On immovable property mortgage").
Footnote. Article 321 as amended by the Law of the Republic of Kazakhstan dated 02.04.2010 No. 262-IV (shall be enforced from 21.10.2010); dated 17.07.2015 № 333-V ( shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 322. Cessation of Pledge
1. Pledge shall cease as follows: 1) with the cessation of the obligation secured with pledge;
2) upon the claim of the pledger, where the grounds exist which are stipulated in paragraph 3 of Article 312 of this Code;
3) in the case of destruction of a pledged object or cessation of the pledged right, unless the pledger failed to exercise the right stipulated in paragraph 2 of Article 314 of this Code;
4) in the case of selling pledged property through a public auction and also in the event that its sale turned out to be impossible (Article 319 of this Code).
2. A note must be made on the cessation of pledge in the register in which the pledge agreement was registered.
3. In cessation of pledge as a result of the execution of the obligation secured with the pledge, or by demand of the pledger (paragraph 3 of Article 312 of this Code), the pledge holder who holds pledged property shall be obliged to immediately return it to the pledger.
Article 323. Preservation of Pledge in the Transfer of the Right to Pledged Property to Another Property in the Procedure of Legal Successorship
1. In the case of a transfer of the right to own pledged property or the economic management over it, from the pledger to any other person as result of a chargeable or charge-free alienation of that property, or in the procedure of the universal legal successorship , the right of pledge shall remain valid.
The legal successor of a pledger shall take the place of the pledger, and he shall bear all the obligations of the pledger, unless the agreement with the pledge holder stipulates otherwise.
2. When the assets of a pledger, which are the pledged objects are transferred in accordance with the procedure of legal successorship to several persons, then each of the legal successors (acquirers of the property) shall bear the consequences of non-execution of the obligation secured with pledge, which ensue from the pledge in proportion to the part of the property which was acquired by him. However, where a pledged object is indivisible or for any other reasons remains in common joint ownership of legal successors, they shall become joint pledgers.
Article 324. The Consequences of Compulsory Withdrawal of Pledged Property
1. When the pledger's right to own the property which is the pledged property ceases upon the grounds and in accordance with the procedure stipulated in legislative acts, as a result of withdrawal (purchase) for state needs, requisition or nationalization, and the pledger is granted other property or appropriate compensation, the right to pledge shall apply to the property granted instead, or where appropriate, the pledge holder shall acquire the right of priority satisfaction of his claims out of the amount of the remuneration which is due to the pledger. A pledge holder may also require premature execution of the obligation which is secured with pledge (paragraph 1 of Article 321 of this Code).
2. In cases when the property being the subject of the pledge shall be withdrawn from the pledger in accordance with the procedure established by legislative acts on the grounds that in reality the owner of this property is another person or as a sanction for committing an administrative or criminal offense, a pledge in respect of this property shall be terminated. In these cases, the pledge holder shall have the right to demand early performance of the obligation secured by the pledge.
Footnote. Article 324 as amended by the Law of the Republic of Kazakhstan dated 03.07.2014 № 227-V (shall be enforced from 01.01.2015).
Article 325. Assignment of Rights in a Pledge Agreement
1. A pledge holder shall have the right to assign his rights in a pledge agreement to another person, in compliance with the rules for conveyance of rights of a creditor by way of assigning a claim (Articles 339 - 347 of this Code).
2. The assignment by a pledge holder of his rights in a pledge agreement to any other person shall be valid, provided the rights to claim the principal obligations secured with the pledge, from the debtor, are assigned to the same person.
3. (Is excluded) Footnote. Article 325 as amended by the Law of the Republic of Kazakhstan dated March
2, 1998 No. 211.
Article 326. Transfer of Debt in an Obligation Secured with Pledge
Pledge shall terminate with the transfer to another person of the debt under an obligation secured with pledge, if the pledger have not given his approval to the creditor to be liable for the new debtor.
Article 327. Pledge of Goods in Circulation
1. A pledge of goods in circulation shall be the pledge of goods with their leaving at the pledger and granting the right to the pledger to change composition and natural form of the pledged property (commodity stocks, raw materials, materials, semi-finished products, finished products, etc.).
2. The goods in circulation which are alienated by the pledger shall cease to be subject to pledge from the moment of their transfer into the ownership, business authority or operational management of the buyer, while the goods purchased by the pledger, which are indicated in the pledge agreement shall become the pledged object from the moment of the acquisition by the pledger of the right of ownership or business authority over them.
3. By agreement of the parties, the pledge agreement may stipulate that the total value of the pledge of goods in circulation shall not become less than the value specified in the pledge agreement.
Reduction of the value of pledged goods in circulation shall be allowed in proportion to the part of the obligation secured by the pledge, unless otherwise stipulated by the agreement.
4. In case of violation by the pledgor of the terms of pledge of goods in circulation, the pledgee shall have the right to suspend operations with pledged goods by imposing its signs until the violation is eliminated.
Footnote. Article 327 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication); dated 24.05.2018 № 156-VI (shall be enforced upon the expiration of ten calendar days after the day of its first official publication); dated 02.04.2019 № 241-VI (
shall be enforced upon the expiration of ten calendar days after the day of its first official publication).
Article 328. Pledging items in a pawnshop
1. Acceptance from citizens of movable assets which are intended for personal use to secure short-term loans, may be carried out as an entrepreneurial activity by the legal entities, registered as the pawnshops, exclusive of activity of which are the following:
1) short-term loans of up to one year's duration secured by movable property; 2) account, keeping and selling the jewelry, containing precious metals and precious gems
. Pawnshops shall have the right to carry out investing activities. 2. An agreement for pledging objects in a pawnshop shall be documented through the
pawnshop's issuing a pledge ticket and may contain the requirement to insure the pledged assets. The insurance of the pledged assets shall be carried out at the expense of the pawnshop .
2-1. An agreement on pledging things in a pawnshop is terminated due to the sale of the pledged object.
3. A pawnshop shall not have the right to use and dispose of pledged objects. 4. The pawnshop shall bear responsibility for loss and damage to pledged objects, unless
it proves that the loss or damage occurred as a result of force majeure. 5. The pawnshops shall carry out their activities only in the presence of the rules for
conducting of pawnshop operations, which shall be approved by the supreme body of the pawnshop and they shall contain the following information:
1) minimum/maximum amount and terms of the provided loans; 2) minimum/maximum amount of the rate of return of the provided loans; 3) rates and tariffs for proving the operation; 4) rights and obligations of the pawnshops and its clients, their responsibility; 5) the procedure of issue of the duplicates to the pledger in the case of loss of the pledge
ticket. 6) other terms. The rules for conducting of pawnshop operations are to be distributed in the place, which
is accessible for viewing by the clients of the pawnshop. Pawnshops shall be obliged to notify the authorized body on financial monitoring about
the beginning or termination of activity in the order established by the Law of the Republic of Kazakhstan "On permissions and notifications".
6. The provisions of an agreement to pledge objects in a pawnshop, which restrict the rights of the pledger as compared to the rights which are granted to him by this Code and the appropriate legislative act, shall be invalid from the moment of the conclusion of the agreement. Relevant provisions of this ?ode shall apply instead of such conditions.
7. Pawnshops shall be obliged to comply with the requirements stipulated by the legislation of the Republic of Kazakhstan on combating legalization (laundering) of proceeds from crime and financing of terrorism.
Footnote. Article 328 as amended by the Laws of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated March 2, 2001 No. 162; is in the wording- dated December 23, 2005 No. 107 (the order of enforcement see Art. 2 of the Law No. 107); dated 02.08.2015 № 343-V (shall be enforced from 01.04.2016); No. 217-VI dated 21.01.2019 (shall be enforce upon expiration of ten calendar days after the day of its first official publication).
Paragraph 4. Guarantees and Sureties
Footnote. Paragraph 4 is in the wording of the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 329. Guarantee
1. By virtue of a guarantee the guarantor shall become liable to the creditor of another person (debtor) severally in full or in part for the execution of obligations of that person, except for the cases provided for by legislative acts.
2. Persons who jointly issued a guarantee shall be liable to the creditor severally, unless it is otherwise stipulated in the guarantee agreement.
3. A guarantee agreement may be entered into also in order to secure an obligation which will emerge in the future.
Article 330. Surety
By virtue of a surety, the holder of the surety assumes the obligation before the creditor of any other person (debtor) to be liable severally for the execution of that person's obligation in full or in part.
Article 331. Grounds and Forms of Guarantees and Sureties
1. A guarantee and a surety shall arise on the basis of surety or guarantee agreements. Application of guarantees may be established by legislation.
2. Guarantee or surety agreements must be concluded in writing. Failure to comply with the written form shall entail the nullity of the guarantee or surety agreement.
3. The written form of guarantee or surety agreements shall be deemed to be complied with, provided the guarantor or surety notified in writing the creditor of his liability for the execution of the obligation by the debtor, and the creditor did not refuse the proposal of the guarantor or surety during the period of time which is reasonably required for such a refusal.
4. Second-tier banks may carry out issuing of banking guarantees and sureties on the basis of the licenses from the authorized body in accordance with the rules of this Code and subject to the requirements of the regulatory legal acts of the authorized body which regulate the procedure for conducting specified transactions.
Issuing of bank guarantees and by the second-tier banks without observing the regulations of this Code and without incorporating the requirements of the normative legal acts of the authorized body shall entail their invalidity.
Footnote. As amended by the Laws of the Republic of Kazakhstan dated March 2, 2001 No. 162, dated July 10, 2003 No. 483 (shall be enforced from January 1, 2004), dated January 12, 2007 No. 225 (shall be enforced from the day of its official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 332. Liabilities of Guarantors and Sureties
1. Unless it is otherwise established by the agreement, a guarantee or a surety shall secure only valid claims. A guarantor and a surety shall not be released from their liability if they assumed the liability for a debtor whose incompetence had been previously been known to them, while the creditor had no knowledge of that circumstance.
2. The guarantor shall be liable to the creditor within the same volume as the debtor, including payment of damages, remuneration (interest), court expenses associated with the levying of the debt and other costs of the creditor incurred by the failure to execute the obligation or its improper execution by the debtor, unless it is otherwise established in the guarantee agreement.
3. The surety shall be liable before the creditor within the amount as indicated in the surety agreement, unless it is otherwise stipulated by its terms. Prior to presenting any claims to the surety who bears several liability, the creditor shall take reasonable measures to make the debtor satisfy this claim, particularly by offsetting a counter claim and by imposing claims upon the debtors property in accordance with the established procedure.
Article 333. The Rights and Obligations of a Guarantor in the event that the Creditor Files a Claim against Him
1. A guarantor, prior to satisfying a creditors claim, shall be obliged to notify the debtor of it, and in the event that an action is filed against the guarantor, he shall hold the debtor as a party to the action. If contrary is the case, the debtor shall have the right to present all objections, which he had against the creditor, against the guarantors recourse.
2. A guarantor shall have the right to make objections against the creditor's claims which may be presented by the debtor, unless it otherwise ensues from the guarantee agreement. The
guarantor shall not lose the right to those objections even in the case where the debtor refused them, or recognized his debt.
Article 334. The Rights of a Guarantor and a Surety Who Executed Obligations
1. The guarantor who executed the obligation shall acquire all the rights of the creditor under that obligation, and the rights which belonged to the creditor as pledge holder, in the amount in which the guarantor satisfied the claims of the creditor. The guarantor shall also have the right to claim from the debtor the payment of damages and interest (remuneration) in the amount paid to the creditor, and reimbursement of other losses incurred in connection with the liability for the debtor.
2. In the execution by the guarantor of an obligation, the creditor shall be obliged to hand to the guarantor the documents which certify the claim against 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 stipulated by legislation, or in the agreement of the guarantor with the debtor or ensues from the relations between them.
4. A surety shall acquire the same rights in the part as he executed the obligation of the debtor to the creditor.
Article 335. Notice to the Guarantors and Surety on the Execution of an Obligation by the Debtor
A debtor who executed an obligation secured with a guarantee or a surety shall be obliged to immediately notify the guarantor or the surety of that. If the contrary is the case, the guarantor or the surety, who in their turn executed the obligation, shall have the right to claim from creditor what he received undeservedly, or to file a regress claim against 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. Termination of a Guarantee and Suretyship
1. Guarantee and surety shall be terminated with the termination of the obligation secured by it, unless the agreement provides for other cases of termination of the guarantee, as well as in the event of a change in this obligation entailing an increase in liability or other adverse consequences for the guardian and the guarantor, without the consent of the latter.
2. A guarantee and a surety shall terminate upon transferring to another person the debt secured by the guarantee or surety, unless the guarantor or surety have given to the creditor their consent to be liable for the new debtor.
3. A guarantee and a surety shall terminate if upon the date of execution of the obligation secured by it, the creditor has declined to accept a proper execution as offered by the debtor, or the guarantor, and surety.
4. A guarantee and a surety shall terminate upon expiry of their effective term for which they were issued, as indicated in the guarantee or surety agreement. If such term is not specified, they shall terminate, unless the creditor files a claim against the guarantor or surety within one year from the date of execution of an obligation secured by the guarantee or surety . Where the term for the execution of the principal obligation is not indicated nor may it be defined, or where it is defined as the moment of calling, the guarantee or the surety shall terminate, unless the creditor files an action against the guarantor or surety within two years from the date of entering into the guarantee or surety agreement, unless it is otherwise stipulated in legislative acts.
Footnote. Article 336 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Paragraph 5. Advance Payment
Article 337. The Definition of Advanced Payment. The Form of the Advance Payment Agreement
1. A sum of money which is issued by one of the parties 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 execution of the agreement, shall be recognized as an advance payment.
2. A deposit agreement, regardless of the deposit amount, must be concluded in writing. This rule applies also in the case when the main obligation must be notarized. Non-compliance with the written form shall entail the nullity of the deposit agreement.
Footnote. Article 337 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication); dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 338. The Consequences of the Termination and the Failure to Execute an Obligation Secured with an Advance Payment
1. In terminating an obligation prior to the beginning of its execution, by agreement of the parties, or as a consequence of impossibility to execute it, which emerged without their guilt, the advance payment must be returned.
2. When the failure to execute 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 party, 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 execute 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 stipulated in the agreement .
Paragraph 6. Withholding
Footnote. The Code is supplemented with the paragraph 6 by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 338-1. General Provision on Withholding
1. On default by the debtor of the obligations in time or of reimbursement of costs connected with it to the creditor, a creditor, who have an object, which is subject to transfer to the debtor or the person, indicated by the debtor, shall have the right to withhold it, until appropriate obligation would not be discharged.
The requirements, which are not related to the payment of the object or to the reimbursement of its costs and of other losses, but which are originated from the obligation, which parties act as the entrepreneurs, may be provided by the withholding.
2. A creditor may withhold an object, which is in his possession, whereas after that the object got possession of the creditor that the right to it had been obtained by the third person.
3. The rules of this Article shall be applied, unless otherwise provided by the agreement.
Article 338-2. Satisfaction of Requirements at the expense of Withholding Property
The requirements of the creditor withholding an object, shall be satisfied from its cost in the value and the order, provided for the satisfaction of requirements secured by pledge.
Paragraph 7. Guarantee Fee
Footnote. Chapter 18 is supplemented with the paragraph 7 by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 338-3. Notion of the Guarantee Fee
1. Sum of money transferring by the payer of the guarantee fee to the recipient of the guarantee fee as a security of satisfaction of the agreement obligations during deal-making process or conducting another obligation, shall be recognized as the guarantee fee.
2. Obligation to pay for the guarantee fee shall arise in the cases provided by the legislative acts. Obligation to pay for the guarantee fee shall also arises by virtue of agreement of the parties.
Article 338-4. Consequences of Nonfulfillment, Termination or Fulfillment of an Obligation Secured by the Guarantee Fee
1. On default of obligation secured by the guarantee fee due to the fault of the payer of the guarantee fee, the fee shall fall to another party.
2. On default of obligation secured by the guarantee fee due to the fault of recipient of guarantee fee or in case of termination of such obligation upon mutual agreement of the parties or by virtue of impossibility of fulfillment, the guarantee fee occurred without their fault shall be repayable.
3. When concluding an agreement or fulfilling another obligation, secured by the guarantee fee, the sum of the guarantee fee shall be deemed to have been received on account of fee, which is owed to the recipient of guarantee fee from another party by the concluded agreement or another obligation secured by the guarantee fee, unless otherwise provided by this Code, by another legislative acts, by the agreement of the parties or unless the subject of the obligation otherwise requires.
Chapter 19. Replacing Persons in An Obligation
Article 339. The Grounds and 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 another 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 creditors rights 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 stipulated in legislative acts or the agreement.
3. If a debtor is not notified in writing of the conveyance of the creditor's rights to another person, which took place, the new creditor shall bear the risk of negative consequences for him caused by that. In that case, the execution of the obligation to the initial creditor shall be recognized as the execution to the proper creditor.
4. Special considerations in the re-assignment of the right to claim under certains of obligations may be established by legislative acts.
Footnote. Article 339 is supplemented with paragraph 4 by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 340. The Rights Which may not be Transferred to Any Other Person
Transfer of the rights to another 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 Creditors which are Transferred to Another Person
Unless it is otherwise stipulated in legislative 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 execution of the obligation, and also any other rights which are related to the right to claim, including the right to remuneration (interest) not received.
Footnote. Article 341 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Article 342. Proofs of the Rights of a New Creditor
1. A debtor shall have the right not to execute 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 that 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 notice of conveyance of the rights associated with the obligation to the new creditor.
Article 344. The Transfer of the Rights of a Creditor to Another Person on the basis of Legislative Acts
The rights of a creditor under an obligation shall be transferred to another person on the basis of legislative acts, and when the circumstances take place which are indicated 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 another person
where the possibility of such transfer is stipulated in legislative acts; 3) consequential to execution of an obligation by its guarantor, surety or pledger, who is
not a debtor, with regard to that obligation; 4) in the subrogation to the insurer of the rights of the creditor to the debtor who is guilty
for the occurrence of the insurable event. 5) in other cases stipulated in legislative acts. Footnote. Article 344 as amended by the Law of the Republic of Kazakhstan dated March
2, 1998 No. 211.
Article 345. The Terms for Assignment of a Claim
1. Assignment of a claim by a creditor to another person shall be allowed, unless it contradicts legislation or the agreement.
2. It shall not be allowed to assign claims under an obligation in which the person of the creditor is important for the debtor, without the approval 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 appropriate written form.
2. The assignment of a claim associated with a transaction which requires the state registration, must be registered in accordance with the procedure stipulated for the registration of that transaction.
3. The assignment of a claim associated with an order security shall be committed by way of a note on that security (paragraph 3 of Article 132 of this 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-execution of that claim by the debtor, except for the case where the initial creditor assumed upon himself the surety of the debtor before the new creditor, as well as, unless otherwise provided by this Code or by the agreement.
Footnote. Article 347 as amended by the Law of the Republic of Kazakhstan dated June 3, 2003 No. 426.
Article 348. Transfer of a Debt
1. The transfer by a debtor of his debt to another person shall be allowed 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 this Code shall accordingly apply to the form of the transfer of the debt.
4. Special considerations in the transfer of debts under certains of obligations may be established by legislative acts.
Footnote. Article 348 is supplemented with the paragraph 4 by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Chapter 20. The Liability for Violation of an Obligation
Article 349. The Definition of Violation of an Obligation
1. The failure to execute or execution in an improper manner (untimely, with shortage of goods and work, with violating any other conditions determined in the contents of the obligation), - improper execution, shall be understood to be a violation of the obligations. In the event that the impossibility of proper execution arises, the debtor shall be obliged to immediately notify the creditor thereof.
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 that are caused by the Violation of an Obligation
1. A debtor who violated an obligation shall be obliged to compensate the creditor for any losses caused by the violation (paragraph 4 of Article 9 of this Code). Compensation of losses for obligations which are secured with a forfeit shall be determined by the rules which are stipulated in Article 351 of this Code.
2. An agreement of the parties to release the debtor from compensation for damages caused by the violation, taken before the breach of the obligation, shall be void, however, by mutual agreement the parties may provide for recovery of only real damage in the property.
3. Unless it is otherwise stipulated in legislation or agreement, when determining losses, the prices shall be taken into account which existed in that place where the obligation should have been executed, 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 the claim to compensate 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 require the recognition as invalid of any acts of the debtor, as well as the owner of his property, provided he proves that it was performed for the purpose of evading the liability for the violation of an obligation.
Footnote. Article 350 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 351. Losses and Forfeit
1. When a forfeit is established for a failure to execute, or for improper execution of an obligation, then the losses shall be compensated for the part which is not covered by the forfeit. Legislation or the agreement may stipulate the cases: where it is permitted to claim only forfeit. but not losses; where losses may be levied in full amount in addition to damages; and where at the discretion of the creditor either damages or losses may be claimed.
Legislative acts of the Republic of Kazakhstan or the contract may provide for the cases: when losses may be recovered in full amount in excess of the penalty; when at the choice of the creditor either a penalty or losses may be recovered.
Cases, in which, a penalty only may be established for failure to perform or improper performance of an obligation, shall be determined by legislative acts of the Republic of Kazakhstan.
2. In the cases where for failure to execute or improper execution 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 limitation.
Footnote. Article 351 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 352. Compensation of Moral Losses Inflicted by vViolation of an Obligation
Moral losses caused by violation of an obligation shall be compensated in addition of the losses stipulated in Article 350 of this Code.
Article 353. The Liability for Unlawful Use of Somebody’s Funds
1. Damages shall be paid for an unlawful use of somebody else's funds as a result failure to execute of a monetary obligation or a delay in their payment, or their undeserved receipt or saving at the expense of any other entity. Amounts of damages shall be assessed on the basis of the official rate of refinancing of the National Bank of the Republic of Kazakhstan as at the date of the execution of the monetary obligation or its relevant part. When exacting debts in a judicial procedure, the court may satisfy claims of the creditor on the basis of the official rate of refinancing of the National Bank of the Republic of Kazakhstan as at the date of filing the action or at the date of passing a decision, or as at the date of actual payment. These rules shall apply where the new amount of damages is not established by legislative acts or an agreement.
2. Damages for using somebody else's funds shall be assessed including the date of the payment of those funds to the creditor, unless legislation or agreement provide an alternative procedure for the assessment of the forfeit.
3. When losses inflicted upon a creditor by unlawful use of his funds exceed the amount of the forfeit, owing to him on the basis of paragraph 1 of this Article, he shall have the right to claim from the debtor the reimbursement of the losses inasmuch as they exceed that amount.
Footnote. Article 353 is in the wording of the Law the Republic of Kazakhstan dated July 11, 1997 No. 154. Article as amended by the Law the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 354. The Liability and Execution of an Obligation in kind
1. Payment of the forfeit. and compensation of losses in the cases of improper execution of an obligation, shall not exempt the debtor from the execution of the obligation, unless it is otherwise stipulated in legislative acts or agreement.
2. Compensation of losses in case of failure to execute an obligation and payment of the forfeit. for failure to execute it shall exempt the debtor from the execution of the obligation in kind, unless it is otherwise stipulated in legislative acts or the agreement.
3. The refusal of a creditor to accept execution, which as a result of a delay lost interest for him (Article 365 of this Code), and also payment of a monetary sum which is established as smart money (Article 369 of this Code) shall release the debtor from the execution of the obligation in kind.
Footnote. Article 354 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 355. The Consequences of Non-execution of an Obligation to Transfer an Individually Defined Item
1. In the case of failure to execute 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. Execution of an Obligation at the Expense of the Debtor
In the case of failure by the debtor to execute an obligation to manufacture and transfer an item to the 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 execution of the obligation to third persons for a reasonable price or to execute it himself, unless it otherwise ensues from legislation, agreement or the essence of the obligation, and to claim from the debtor compensation for the necessary expenses and any other losses incurred.
Article 357. Subsidiary Liability
1. Prior to the presentation of a claim to the person who in accordance with legislation or conditions of an obligation bears a liability in addition to the liability of another person who is the principal debtor (subsidiary liability), the creditor must present the claim to the principal debtor.
When the principal debtor refuses to satisfy or fails to execute fully the claim of the creditor, or the creditor has not received from him within a reasonable period the response to the claim presented, that claim, inasmuch of it as has not been executed) may not be presented to the person who bears the several liability.
2. A creditor shall not have the right to claim satisfaction of his claim to the principal debtor from the person who bears subsidiary liability where such a claim may be satisfied by way of offsetting a counter claim to the principal debtor (Article 370 of this Code)
3. A person who bears several liability must, prior to the satisfaction of the claim which is presented to him by the creditor, notify the principal debtor accordingly, and if a claim is filed against such person, to bring the principal debtor into participation in the case.
If contrary is the case, the principal debtor shall have the right to issue against the regress claim of the person who is liable severally, the objections which he had against the creditor.
Footnote. Article 357 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 358. Limiting the Amount of Liability in Obligations
1. In certains of obligations and in obligations which are associated with certains of activities, legislative acts may limit the right to full compensation of losses (limited liability).
2. An agreement on limiting the amount of the debtor's liability under the contract of accession or another contract in which the creditor is a citizen acting as a consumer shall be void if the amount of liability for this type of obligation or for the violation is determined by law.
Footnote. Article 358 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 359. The Grounds of Responsibility for Violating an Obligation
1. A debtor shall be responsible for failure to execute and (or) improper execution of an obligation if guilt exists, unless it is otherwise stipulated in 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 execution of the obligation.
2. A person who failed to execute or improperly executed an obligation when carrying out entrepreneurial activities, shall bear the financial liability, unless he proves that proper execution turned out to be impossible as a result of force majeure, that is extraordinary and unpreventable under given circumstances (natural calamities, military actions, etc.). In particular, lack in the market place of the goods, work or services which are required for the execution, shall not be referred to as such circumstances.
Legislation or the agreement may provide for other grounds for liability or release there from.
3. An agreement concluded beforehand on elimination or limitation of liability for intentional violation of the obligation shall be void.
Footnote. Article 359 as amended by the Law of the Republic of Kazakhstan dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 360. Entrepreneurial Risk in an Obligation
When an obligation envisages the execution of certain work in accordance with the order of an entrepreneur, the risk of impossibility or the impracticality of using the results of the work, shall rest with the entrepreneur. A person who properly executed work, shall have the right to receive the payment in proportion to the degree of the execution, except for the cases where the agreement provides for other distribution of the entrepreneurial risk.
Article 361. Consequences of the Impossibility to Execute a Bilateral Agreement
When in a bilateral agreement it became impossible for one party to execute, 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 execution of the agreement, unless the legislative act or agreement stipulates otherwise. Either of the parties shall have the right to claim in that case the return of everything that it executed without receiving any appropriate counter execution.
Article 362. The Liability of a Debtor for His Workers
Actions of the officials or any other workers of the debtor associated with the execution of his obligations shall be deemed to be actions of the debtor. The debtor shall be liable for those actions if they entailed non-execution or improper execution of an obligation.
Article 363. The Liability of a Debtor For Actions of Third Persons
1. A debtor shall bear liability to the creditor 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 persons.
The debtor shall bear the responsibility also for the actions or failure to act by third persons to whom the debtor entrusted the execution of his obligation to the creditor, unless legislation establishes, that the responsibility shall be borne by the direct executor.
2. A debtor may be exempt from liability for violation of an obligation caused by the actions or failure to act by third persons, having proven their innocence.
When carrying out entrepreneurial activities, a debtor may be released from responsibility for a violation caused by the action or failure to act by third persons, provided that was caused by force majeure (paragraph 2 of Article 359 of this Code).
3. In the case of violation of an obligation which is associated with the encumbrance of the item in the obligation by the rights of third persons, the debtor shall be exempt from liability only in the case if such encumbrance arose prior to the conclusion of the agreement with the creditor and the latter was warned of them when the agreement was caused.
4. Legislation or agreement may stipulate any other conditions for the liability of a debtor for the actions of third persons.
Article 364. Creditor’s Fault
1. When a failure to execute or improper execution of an obligation took place because of the fault of both parties, the court shall accordingly reduce the amount of the liability of the debtor. The court also shall reduce the amount of the liability of the debtor if the creditor deliberately or through negligence assisted in the increase of the amount of losses inflicted by the failure to execute or by improper execution, or did not adopt any reasonable measures to reduce them.
2. The rules of paragraph 1 of this Article shall appropriately apply also in the cases where a debtor by virtue of a legislative act or agreement bears the responsibility for non-execution or improper execution of the obligation irrespective of his guilt.
Footnote. Article 364 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 365. Debtor’s Delay
1. A debtor who delayed execution shall be responsible to the creditor for the losses inflicted by the delay and for the consequences of the impossibility to execute which emerged by accident during the time of the delay.
2. When as a result of a delay by the debtor, the execution has lost interest for the creditor, he may reject the acceptance of the execution and claim compensation of losses.
3. A debtor shall not be deemed to be delaying for as long as the obligation may not be executed as a result of the delay by the creditor (Article 366 of this Code).
Article 366. Creditor’s Delay
1. A creditor shall be deemed to be delaying if he refused to accept a proper execution, offered by the debtor, or has not committed any actions which are stipulated in legislation or agreement, or which ensue from traditions of business practice or from the essence of the obligation, prior to the commitment whereof the debtor could not execute his obligation.
A creditor shall be deemed to be delaying also in the case of his refusal to properly confirm the execution of obligations performed by the debtor.
2. A creditor's delay shall give to the debtor the right to compensation for the losses caused by the delay, unless the creditor proves that the delay took place due to the circumstances for which neither he himself, nor the persons to whom by virtue of legislation or of the creditor's instructions, the acceptance of the execution was entrusted, are not responsible.
All the unfavorable consequences of the occurrence during the delay of the accidental impossibility to execute the obligation shall be imposed upon the creditor who committed the delay.
3. In a monetary obligation, a debtor shall not be obliged to pay remuneration (interest) for the time of the delay by the creditor.
Footnote. Article 366 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154.
Chapter 21. Cessation of an Obligation
Article 367. The Basis for the Cessation of an Obligation
1. Obligations shall terminate entirely or in part by the execution, granting of smart money, offset, novation, or forgiving of debt, coincidence of the debtor and the creditor in one person, impossibility to execute, the issue of an act by a state body, demise of the citizen, 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 stipulated by legislation.
3. Legislation and agreement may stipulate any other grounds for the cessation of obligations.
Article 368. Cessation of an Obligation by the Execution
1. Execution which is completed properly shall terminate the obligation. 2. (is excluded). Footnote. Article 368 as amended by the Law of the Republic of Kazakhstan dated March
2, 1998 No. 211.
Article 369. Smart Money
By agreement of the parties, an obligation may be terminated by offering instead of the execution of smart money (payment of money, transfer of assets etc.). The amount, the deadlines and the procedure for presenting the smart money shall be established by the parties .
Article 370. Cessation of an Obligation by Offset
1. An obligation shall be terminated fully or partially by offsetting a similar claim, the deadline for which has arrived, or the deadline wherefore is not specified or is defined as time of the claim. An application of one party shall be sufficient for an offset.
2. Offset of claims shall not be allowed in the following cases: 1) when pursuant to the application of one party, a claim is subject to statute of limitations
, and the term of the statute has expired; 2) claims associated with compensation for harm caused to life or health; 3) claims associated with exacting alimony; 4) claims of life-long support; 4-1) claims to the bank, which revoked the license or is in the process of conservation or
liquidation, if the creditor’s claims arise out of claim assignment contract; 5) in other cases provided for by legislation or agreement. 3. In the case of the re-assignment of a claim, the debtor shall have the right to offset his
counter-claim to the initial debtor against the claim of the new creditor.
Offset shall be carried out when a claim emerged on the basis which existed by the moment when the debtor received the notice of assignment of the claim, and the time for the claim arrived prior to its receipt, or this deadline is not indicated, or it is defined as whenever called.
Footnote. Article 370 as amended by the Laws of the Republic of Kazakhstan dated 02.03.1998 No. 211; dated 23.12.2005 No. 107 (the order of enforcement see Art. 2 of the Law No. 107); dated 10.02.2011 No. 406-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 371. Cessation of an Obligation by the 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 be terminated by agreement of the parties to replace the initial obligation which existed between them, by any other obligation between the same persons, which provides for another paragraph or method of execution (novation).
2. Novation shall not be allowed with regard to the obligations to compensate damage caused to life or health, and to pay alimony.
3. Novation shall terminate additional obligations related to the initial one, unless it is otherwise stipulated by agreement of the parties.
Footnote. Article 372 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
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 with regard to the property of the creditor.
Article 374. Termination of Obligations by Impossibility to Execute
1. An obligation shall be terminated by impossibility to execute it, provided it is caused by a circumstance for which the debtor is not responsible. This rule shall not apply to monetary obligations.
2. In the case where the impossibility of one party to execute an obligation is caused by a circumstance for which neither one nor the other party are responsible, it shall not have the right to claim from the other party the execution of the obligation, unless it is otherwise
stipulated in legislation or the agreement. In that respect, either party which executed its obligation, shall have the right to claim the return of the executed.
3. In the case of the impossibility to execute an obligation by the debtor, which is caused by guilty actions of the creditor, the latter shall not have the right to claim the return of what is executed by him in the obligation.
Article 375. Termination of an Obligation on the Basis of the Act of a State Body
1. When as a result of the issue of an act by state bodies, including local representative and executive bodies (a public act), the execution of an obligation becomes entirely or partially impossible, the obligation shall cease fully or in the relevant part. The parties which incurred losses as a result thereof, shall have the right to claim their compensation in accordance with this Code.
2. In the case of recognition in accordance with the established procedure of the public act as invalid, on the basis of which an obligation terminated, the obligation shall be re-established, unless it otherwise ensues from the agreement of the parties or from the essence of the obligation and where the execution thereof have not lost interest for the creditor.
Article 376. Termination of an Obligation by Demise of the Citizen
1. An obligation shall terminate with demise of the citizen, unless the execution may be carried out without the personal participation of the debtor, or the obligation in any other manner is inseparably connected to the person of the debtor.
2. An obligation shall cease with demise of the creditor, where the execution is intended personally for the creditor or the obligation is in any other way inseparably associated with the person of the creditor.
Article 377. Termination of an Obligation by Liquidation of the Legal Entity
1. An obligation shall be terminated by liquidation of the legal entity (debtor or creditor), except for the cases where legislation delegates the execution of the obligation of the liquidated legal entity to any other legal entity (in the obligations which arise as a result of causing harm to life and health etc.).
2. Termination of activities or reorganization of the state bodies, including the local representative and executive bodies, shall not terminate the obligations in which such bodies are debtors. The execution of specified obligations shall be entrusted to a body which manages the funds of the budget, unless it is otherwise stipulated by the resolution concerning the termination of activities or reorganization of the relevant bodies.
Footnote. Article 377 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Subsection 2. General Provisions Concerning Agreements Chapter 22. The Definition and Conditions of Agreements
Article 378. The Definition of Agreement
1. An arrangement of two or several persons concerning the establishment, amendment or cessation of civil rights and obligations shall be recognized as agreement.
2. The rules for bilateral and multilateral transactions as stipulated in Charter 4 of this Code, shall apply to agreements.
3. General provisions concerning agreements shall apply to agreements concluded by more than two parties (multilateral agreements), unless this contradicts the multilateral nature of such agreements.
Article 379. Legal Relations Which Arise From Agreements
1. Obligatory, corporeal, copyright legal relations and other legal relations may arise from agreements.
2. The general provisions concerning obligations (Articles 268 - 377 of this Code) shall apply to obligations arising from agreements, unless it is otherwise specified by the rules of this chapter and rules concerning specifics of agreements which are contained in this Code.
3. The provisions of this Chapter shall apply to corporeal, copyright or other legal relations which arise from agreements (agreements for joint activities, foundation agreement, copyright agreements and other), unless it otherwise ensues from legislation, agreement or the essence of the legal relation.
Article 380. Freedom of Contract
1. Citizens and legal entities shall be free in concluding agreements. Compulsion to conclude an agreement shall not be allowed, except for the cases where the obligation to conclude an agreement is contemplated by this Code, legislative acts or by the obligation adopted voluntarily.
2. Parties may conclude agreements both as provided for and as not provided for by legislation.
Article 381. Mixed Agreements
Parties may conclude an agreement which contains the elements of various agreements provided for by legislation (mixed agreement). The relations of the parties in certain parts of a mixed agreement shall be subject to relevant legislation concerning agreements, the elements of which are contained in the mixed agreement, unless it otherwise ensues from the agreement of the parties or the essence of the mixed agreement.
Article 382. Defining Provisions of an Agreement
1. Provisions of an agreement shall be defined at the discretion of the parties, except for the cases where the contents of a certain provision are prescribed by legislation.
In the cases where a provision of an agreement is prescribed by a rule which, in accordance with legislation applies, unless the agreement of the parties specifies otherwise ( dispositive rule), the parties may by their agreement exclude its application or establish a condition which is different from the one specified in it. Where such agreement does not exist the condition of the agreement shall be determined by the dispositive rule.
2. If a provision of an agreement is not defined by the parties nor by a dispositive norm, the appropriate provisions shall be determined by traditions of business practice, which are applicable to the relations of those parties.
Article 383. Agreement and Legislation
1. An agreement must comply with the rules which are obligatory for the parties and which are established by legislation (imperative rules), which are effective at the moment of its conclusion.
2. When after the conclusion of an agreement, legislation establishes for the parties the rules which are different from those that were effective when the agreement was concluded, the terms of the concluded agreement shall remain valid, except for the cases where legislation establishes that it applies to the relations which arose from the agreements concluded earlier.
Article 384. Chargeable and Non-chargeable Agreements
1. An agreement in accordance with which one party must receive a payment or other counter consideration for the execution of its obligations, shall be recognized as chargeable.
2. An agreement shall be recognized as non-chargeable in which one party is obliged to supply something to the other party without receiving from it any payment or any other counter consideration.
3. An agreement shall be deemed to be chargeable, unless it otherwise ensues from legislation, contents or the essence of the agreement.
Article 385. Price
1. Execution of an agreement shall be paid in accordance with the price established by agreement of the parties.
In the cases which are stipulated by legislative acts, the prices (tariffs, fees, rates, etc.) shall apply as established or regulated by the state bodies authorized accordingly.
2. Changing prices after concluding agreements shall be allowed in the cases and on the terms as specified in the agreement, legislative acts, or in accordance with the procedure established by legislative acts.
3. In the cases where, in a chargeable agreement, the price is not stipulated and may not be determined on the basis of the provisions of the agreement, it shall be deemed that the execution of the agreement must be carried out at the price which, at the moment of the conclusion of the agreement was usually charged for similar goods, work and services under similar conditions.
Article 386. Validity of an Agreement
1. An agreement shall enter into force and it shall be binding for the parties from the moment of its conclusion (Article 393 of this Code).
2. The parties shall have the right to establish, that the provisions of the agreement concluded by them shall apply to their relations which arose prior to the conclusion the agreement.
3. Where legislation or an agreement specify a validity period of the agreement, the expiry of that term shall entail the cessation of the obligations of the parties under the agreement.
An agreement in which there is no indication as to its validity period shall be recognized as valid until the moment specified in it for the termination by the parties of the execution of the obligation.
4. The expiry of the validity period of an agreement shall not release the parties from the responsibility for its violation which took place prior to the expiry of that period.
Article 387. A public Agreement
1. An agreement which is concluded by a person engaged in entrepreneurial activity and establishing his duties for the sale of goods, performance of work or provision of services that such a person, in the nature of its activities, should exercise with respect to everyone who applies to him (retail, transportation by public transport, communication services, energy supply, medical, hotel services and the like) shall be recognized as a public agreement.
A person engaged in entrepreneurial activity shall not have the right to grant preference to one person before another person in relation to conclusion of a public agreement, except for the cases provided for by legislative acts of the Republic of Kazakhstan.
2. The price of goods, work and services and also other provisions of a public agreement shall be established as being the same for all customers, except for the cases where legislation allows the granting of privileges for certain categories of consumers.
3. Refusal of a person engaged in entrepreneurial activity to conclude a public contract, provided that it is possible to provide the consumer with the relevant goods (work, services) shall not allowed.
In case of unreasonable evasion of a person engaged in entrepreneurial activity from conclusion of a public agreement, the provisions provided for by paragraph 4 of Article 399 of this Code shall apply.
4. In the cases provided for by legislative acts, the Government of the Republic of Kazakhstan may issue rules which are obligatory for parties when entering into and executing public agreements (model agreements, regulations, etc.).
5. The terms of a public agreement that do not meet the requirements stipulated in paragraphs 2 and 4 of this article shall be void.
Footnote. Article 387 as amended by the Law of the Republic of Kazakhstan dated July 11, 1997 No. 154; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 388. Model Provisions of Agreements
1. An agreement may specify that its certain provisions are determined by model provisions which are elaborated for the agreements of that and published in the press.
2. In the cases, where an agreement does not contain any reference to model conditions, such model conditions shall apply to the relations of the parties as traditions of business practice, provided they are consistent with the requirements established by Articles 3 and 382 of this Code.
3. Model provisions may be outlined in the form of a model agreement or any other document which contains those provisions.
Article 389. Adherence Agreement
1. An agreement of which the conditions are determined by one of the parties in pro-forms or any other standard forms and may be adopted by the other party in no other way but by way of adherence to the proposed agreement as a whole, shall be recognized as an adherence agreement.
1-1. The legislative act of the Republic of Kazakhstan on pension provision may provide for the specifics of conclusion of a contract of accession and the requirements for its content.
2. A party which adheres to an agreement shall have the right to claim the dissolution of the agreement if the adherence agreement, although does not contradict legislation, but deprives that party of the rights which are usually granted in agreements of such a, excludes
or restricts the liability of the other party for violation of the obligations or contains other clearly onerous conditions for the adhering party, which it would not accept on the basis of its reasonably understood interests, should it have the possibility to participate in defining the provisions of the agreement.
3. Where the circumstances exist as stipulated in paragraph 2 of this Article, the claim to dissolve the agreement, made by the party which had adhered to the agreement in connection with its exercise of entrepreneurial activities, shall not be subject to satisfaction, if the party which adhered knew or should have known on which conditions it concluded the agreement.
Footnote. Article 389 as amended by the Law of the Republic of Kazakhstan dated 21.06.2013 № 106-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 390. Preliminary Agreements
1. In accordance with a preliminary agreement, the parties assume an obligation to conclude in the future an agreement on the transfer of assets, performance of work or rendering services (principal agreement) on the terms specified in the preliminary agreement.
2. A preliminary contract is concluded in the form established by the legislation for the main contract, and if the form of the main contract is not established, then in writing. Failure to comply with the rules on the form of a preliminary contract shall entail its insignificance.
3. A preliminary agreement must contain the provisions which allow the identification of the subject-matter, and other material conditions of the principal agreement.
4. In a preliminary agreement the period shall be indicated within which the parties are obliged to conclude the principal agreement.
When such a period is not defined in the preliminary agreement, the agreement envisaged by it shall be subject to conclusion within one year from the moment of the conclusion of the preliminary agreement.
5. In the cases where one party which concluded a preliminary agreement evades the conclusion of the agreement which is envisaged thereby, it shall be obliged to compensate the other party for the losses incurred by that, unless it is otherwise stipulated in legislation or the agreement.
6. The obligations which are stipulated in the preliminary agreement shall terminate if prior to the expiry of the period within which the parties must conclude the principal agreement, it is not concluded, or none of the parties sends to the counter-party the proposal to conclude the agreement.
7. A letter of intent (agreement of intentions), unless it directly provides for the intent of the parties to impart to it the status of a preliminary agreement, shall not be deemed to be a civil law agreement and failure to execute it shall not entail any legal consequences.
Footnote. Article 390 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; dated 27.02.2017 № 49-VI (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 391. An Agreement for the Benefit of a Third Persons
1. An agreement shall be recognized to be an agreement for the benefit of a third party, in which the parties established that the debtor shall be obliged to carry out the execution not to the creditor but to a third party who is indicated or not indicated in the agreement and who has the right to claim from the debtor the execution of the obligations for his benefit.
2. Unless it is otherwise stipulated in legislation or agreement, from the moment that the third party expressed to the debtor the intention to exercise its right in accordance with the agreement, the parties may not dissolve or amend without the consent of the third party the agreement concluded by them.
3. A debtor in an agreement shall have the right to make objections against the claim of a third party, which he may make against the creditor.
4. In the case where a third party waives a right which is granted to it in accordance with the agreement, the creditor may use that right, unless that contradicts legislation and the agreement.
5. Since the expression of a third party the intent to exercise its right under the contract to the time of failure of a third party of its right, the creditor is entitled to require a performance of the obligation of the debtor to a third party under the terms of the contract.
Footnote. Article 391 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 392. Interpretation of an Agreement
1. When interpreting provisions of an agreement, the court shall take into account the literal meaning of the words and expressions contained in it. The literal meaning of a provision of an agreement, where unclear, shall be established by way of comparing that with other conditions and the sense of the agreement as a whole.
2. Where the rules contained in paragraph 1 of this Article do not allow to understand the contents of an agreement, the actual common will of the parties must be identified taking into account the objective of the agreement. In that respect, any relevant circumstances, including the negotiations preceding the agreement, and a letter exchange, the practice prevailing in the mutual relations of the parties, tradition of business practice, the subsequent conduct of the parties, shall be taken into account.
Chapter 23. Conclusion of an Agreement
Article 393. Important Terms of an Agreement
1. An agreement shall be deemed to be concluded when consensus is reached between the parties in accordance with the required form, on all the material terms of it.
The provisions concerning the subject-matter of the agreement, the provisions which are recognized by legislation as material or which are necessary for the agreements of that, and also all the provisions on which according to the application of either party, consensus must be reached, shall be recognized as material terms.
2. Where in accordance with legislative the conclusion of an agreement requires a transfer of property, the agreement shall be concluded from the moment of the transfer of that property.
Article 394. Form of an Agreement
1. If the parties agreed to conclude an agreement in certain form, it shall be deemed to be concluded from the moment of imparting to it the appropriate form, even if legislation does not require that form for such of agreements.
2. The written form of an agreement shall be deemed to be complied with, if the written offer to conclude the agreement is accepted in accordance with the procedure provided for by paragraph 3 of Article 396 of this Code.
Article 395. Offer
1. A proposal to conclude an agreement, which is made to one or several specific persons, provided it is sufficiently definite and expresses the intent of the person who made the proposal to deem himself bound in case of its adoption (acceptance), shall be recognized as offer. A proposal shall be deemed to be sufficiently definite, if it contains the material terms of the agreement and the procedure for their determination.
2. An offer shall bind the person who sends it from the moment of its receipt by the addressee.
When the notice of revoking an offer is received earlier than or simultaneously with the offer itself, the offer shall be deemed to be not received.
3. An offer received by the addressee may not be revoked during the period which is established for its acceptance, unless it is otherwise stipulated in the offer itself, or ensues from the essence of the proposal or the situation in which it was made.
4. Advertisements and other proposals which are addressed to an indefinite circle of persons shall be considered as an invitation to make an offer, unless it is otherwise stipulated in the proposal.
5. A proposal which contains all the substantial terms of the agreement, from which the will of the person who is making the proposal is understandable, to conclude the agreement
on the terms specified in the proposal with anyone who responds, shall be recognized as an offer (public offer).
Article 396. Acceptance
1. The response of a person to whom the offer is addressed, about accepting it shall be recognized as acceptance.
Acceptance must be entire and unconditional. 2. Silence shall not be recognized as acceptance, unless it otherwise ensues from the
legislative act, tradition of business practice or previous business relations of the parties. 3. The commitment by the person who received an offer, within the period which is
established for its acceptance, of the actions to implement the provisions of the agreement which are indicated in it (shipment of goods, rendering of services, performing work, payment of the appropriate amount etc.), shall be recognized as acceptance, unless it is otherwise stipulated in legislation or indicated in the offer.
4. If a notice of revocation of the acceptance is received by the person who sent the offer, earlier or simultaneously with the acceptance itself, the acceptance shall be deemed not received.
Article 397. The Procedure for Concluding Agreements
1. When an offer contains a deadline 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 period indicated in it.
2. When a written or electronic offer does not contain a period for acceptance, the contract shall be considered as concluded if the acceptance was received by the person who sent the offer before the expiration of the period established by law, and if such period is not established - within the time required for this.
3. In the cases where a notice of an acceptance deadline is received with a delay, the acceptance shall not be considered late, if the party which sent the offer does not immediately notify the other party of receiving the acceptance with a delay.
If the party which sent the offer immediately notifies the other party that the acceptance of the offer has been received with a delay, the agreement shall be deemed to be concluded.
4. The response of consent to conclude the agreement on the conditions different than those proposed in the offer, shall not be recognized as an acceptance. Such response shall be recognized as a refusal from the offer and at the same time it shall be a new offer.
Footnote. Article 397 as amended by the Law of the Republic of Kazakhstan dated 24.11.2015 № 419-V (shall be enforced from 01.01.2016).
Article 398. The Place of Concluding an Agreement
When an agreement does not specify the place of its conclusion, the agreement shall be deemed to be concluded in the place of residence of the citizen or in the place of location of the legal entity which sent the offer.
Article 399. Concluding an Agreement in an Obligatory Procedure
1. In the cases, where in accordance with this Code or any other legislative acts, the conclusion of an agreement is obligatory for one of the parties, that party must send to the other party the notice of acceptance, or of the refusal to accept, or of acceptance of the offer ( draft agreement) on different terms (protocol of differences to the draft agreement) within thirty days from the date of the receipt of the offer, unless a different period is established by legislation or is agreed by the parties.
2. The party which sent an offer and received from the party for which the conclusion of the agreement is obligatory a notice of acceptance on different terms (protocol of differences to the draft agreement), shall have the right to enter the disputes which arose in concluding the agreement, to a court for its consideration within thirty days from the date of the receipt of such notice, or upon expiry of the period for the acceptance, unless legislation concerning specifics of agreements establishes a different period.
3. In the cases where in respect of a draft agreement sent by one party for which the conclusion of the agreement is obligatory, a protocol of differences concerning the draft agreement is received, that party shall be obliged within thirty days from the date of the receipt of the protocol of differences to notify the other party of the acceptance of the agreement in that party's version or of declining the protocol of differences.
When declining a protocol of differences or in the case of failure to receive the notice concerning the results of its consideration, within an indicated period, the party which sent the protocol of differences, shall have the right to enter the differences which arose in the conclusion of the agreement for the consideration of the court, unless legislation concerning specifics of agreements establishes otherwise.
4. When a party, for which in accordance with this Code or any other legislative acts, the conclusion of an agreement is obligatory, 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 unreasonably evaded the conclusion of an agreement must to compensate to the other party for the losses caused by the refusal to conclude the agreement.
Article 400. Pre-contractual Disputes
In the cases specified in paragraphs 2 and 3 of Article 399 of this Code, and also if the disputes which arose in concluding an agreement, were by consensus of the parties entered
into a court for its consideration, the provisions of the agreement, on which the parties had differences, shall be determined in accordance with decision of the court.
Chapter 24. Amendment and Dissolution of An Agreement
Article 401. Grounds for Amending and Dissolving Agreements
1. Amendments to and dissolution of an agreement shall be possible by agreement of the parties, unless it is otherwise stipulated by this Code, other legislative acts and the agreement.
2. Upon the claim of one of the parties the agreement may be amended or dissolved upon the decision of the court only as follows:
1) when there is a material violation of the agreement by the other party; 2) in other cases which are stipulated in this Code, other legislative acts or the agreement. A violation of the agreement by one of the parties shall be deemed material if it entails for
the other party such damage that it to a substantial degree loses something on which it had the right to count when concluding the agreement.
3. An agreement shall be deemed to be amended or terminated in the case of a unilateral refusal to implement it (partial or full denial of an agreement accordingly (Article 404 of this Code).
Footnote. Paragraph 3 of Article 401 is in the new wording of the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 402. Procedure for Amending and Dissolving an Agreement
1. An arrangement to amend or dissolve an agreement shall be performed in the same form as that of the agreement, unless it ensues otherwise from legislation, the agreement, or traditions of business practice.
2. The claim to amend or dissolve an agreement may be entered by a party to the court only after the receipt of the refusal of the other party with regard to the proposal to amend or dissolve the agreement or in the case of failure to receive a response within the deadlines indicated in the proposal or established by legislation or the agreement, and where it does not exist, - within thirty days’ time.
Article 403. Consequences of Dissolving and Amending an Agreement
1. When dissolving an agreement, the obligations of the parties shall cease. 2. When amending an agreement, the obligations of the parties shall continue to be valid
in an amended form. 3. In the case of dissolving or amending an agreement the obligations shall be deemed to
be terminated or amended from the moment of the reaching the consensus of the parties
concerning the amendment or dissolution of the agreement, unless it otherwise ensues from the agreement of the parties or the nature of the amendment to the agreement, and in the case of termination or amending the agreement in a judicial procedure, - from the moment of the court decision concerning the dissolution or amendment of the agreement entering into legal force.
4. The parties shall not have the right to claim the return of what was executed by them in the obligation prior to the moment of dissolution or amendment to the agreement, unless it is otherwise established in the law legislative acts or the agreement by the parties.
5. Where a substantial violation of an agreement by one of the parties served as the reason for the dissolution or amendment of the agreement, the other party shall have the right to claim the restitution of losses caused by the dissolution or amendment of the agreement.
Footnote. Article 403 as amended by the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211.
Article 404. Unilateral Refusal to Implement an Agreement (Rescission of an Agreement)
1. A unilateral refusal from the implementation of an agreement (rescission of an agreement) shall be allowed in the cases provided for by this Code, other legislative acts or agreement of the parties.
2. Either party shall have the right to refuse to implement the agreement in the following cases:
1) impossibility to perform an obligation based on the Agreement (Article 374 of this Code);
2) recognition, in accordance with the established procedure, of the other party as a bankrupt, unless otherwise established by the legislative act of the Republic of Kazakhstan on rehabilitation and bankruptcy;
3) amendment or abolition of the act of the state body, on the basis of which the agreement was concluded.
3. A unilateral rescission of performance of an agreement shall be allowed in the cases when the agreement is entered into without indication of a period, unless it is otherwise provided for by legislative acts or the consensus of the parties.
4. In the case of a unilateral rescission of the performance of an agreement the party must notify the other accordingly, not later than one month prior, unless it is otherwise provided for by this Code, other legislative acts or consensus of the parties.
Footnote. Article 404 is in the new wording of the Law of the Republic of Kazakhstan dated March 2, 1998 No. 211; as amended by the Law of the Republic of Kazakhstan dated 07.03.2014 № 177-V (shall be enforced upon expiry of ten calendar days after the day its first official publication).
Article 405. Extension of the Validity Period of an Agreement
The parties shall have the right to extend the validity period of the agreement for another period.
The extension of the validity period of an agreement shall be carried out in accordance with the rules of Article 397 of this Code.
Civil Code of the Republic of Kazakhstan (Special part) The Code of the Republic of Kazakhstan dated July 1, 1999 No. 409
Footnote. The numbers "IV-VII" after the word "Section" in the text are replaced respectively by numbers "4-7" in accordance with the Law of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005).
Section 4. Certains of obligations Chapter 25. Sale Paragraph 1. General Terms of Sale
Article 406. Contract of Sale
1. According to the sales contract, one party (the seller) agrees to transfer the property ( goods) in the property, economic management or operative control of the other party (the buyer), the buyer agrees to take the property (goods) and pay a certain amount of money for it (the price).
2. By purchasing and selling of securities and currency values the provisions provided for in this item shall be applied, if the legislation does not have special rules for their sale.
2-1. Features of the sale of goods by the Islamic Bank in carrying out of banking operations shall be established by legislative acts of the Republic of Kazakhstan, regulating the banking sector.
3. In the cases provided by the this Code or other laws, peculiarities of the sale of certain categories of goods shall be determined by legislative and other normative legal acts.
4. The provisions of this paragraph shall apply to the sale of property rights, unless it otherwise follows from the content or the nature of those rights.
5. Regulations under this section shall be applied for certains of contracts of sale (retail sales, supply of goods, energy supply, contracting, sale of business), unless otherwise provided by the rules of the this Code on contracts for these transactions.
6. When selling property in accordance with the procedure established for the execution of judicial decisions, an officer of the court shall act as the vendor.
Footnote. Article 406 as amended by the Laws of the Republic of Kazakhstan dated 12.02.2009 No. 133-IV (the order of enforcement see Art. 2); dated 02.04.2010 No. 262-IV ( shall be enforced from 21.10.2010).
Article 407. The Terms of the Contract for Product
1. Goods under a contract of sale may be anything, in compliance with the rules of Article 116 of this Code.
2. Contract may be concluded for the sale of goods, available from the seller at the time of conclusion of the contract, as well as the goods that will be created or acquired by seller in the future, unless otherwise provided by legislation or follows from the nature of the goods.
3. The condition of the product is considered to be consistent if the contract allows you to define the name and quantity of the goods (material conditions).
Article 408. The Seller’s Obligation to Transfer the Goods
1. The seller is obliged to transfer the goods, provided by the contract. 2. Unless otherwise provided by the contract, the seller is obliged to transfer the goods to
the buyer with its accessories simultaneously, as well as related documents (documents proving the completeness, quality, safety, operation, etc.) provided by normative and legal acts, or by contract.
Article 409. Term of Performance of Obligations to Transfer Goods
1. Term of performance of obligations to transfer the goods to the buyer by the seller shall be defined by the contract, if the contract does not allow to determine the term - it shall be determined in accordance with the rules set out in article 277 of this Code.
2. The contract of sale shall be concluded with the condition of its execution to the strictly defined time period, unless the contract shall clear that if there is a violation of the deadline, the buyer loses interest in the performance of the contract.
The seller shall not be entitled to perform such an agreement before or after a specified period, without the consent of the buyer.
Legislative acts or contract may establish cases of performance of the contract of sale in parts (intermediate deadlines for the performance of the contract).
Article 410.Time of Performance of the Seller’s Obligations to Transfer Goods
1. The seller's obligation to transfer goods to the buyer, unless otherwise provided by the contract of sale, shall considered to be fulfilled, when:
1) hanging of goods to the buyer or the person specified by him (her), if the contract provides for the seller’s obligation to deliver the goods;
2) deliver the goods at the buyer's disposal, if the goods shall be delivered to the buyer or the person specified by him (her) at the location of the goods.
The product shall be supplied to the buyer, when the deadline provided for under the contract, the goods are ready to be transferred to the appropriate place and the buyer, in accordance with the terms of the contract is aware of the readiness of the goods for the transfer. This product shall not be considered to ready for transfer, if it is not identified for the purposes of the contract, by marking or otherwise.
2. In cases, where the contract of sale shall not followed the seller's obligation to deliver goods or transfer the goods to the buyer at its location, the obligation of the seller to transfer the goods to the buyer shall be considered to be executed at the moment of delivery of the goods to the carrier or the organization due for delivery to the buyer, unless the contract provides otherwise.
Article 411. Passing the Risk of Accidental Loss of Goods
1.The risk of accidental loss or accidental damage of the goods, which is provided by the contract of sale, shall be passed to the buyer, when in accordance with legislative acts or the contract, the seller is considered to perform his (her) duty to transfer the goods to the buyer.
2. The risk of accidental loss or accidental damage of the goods, which is sold on the way, shall be passed to the buyer since the moment of conclusion of the contract of sale, unless otherwise provided by the contact or customary business practice.
A condition of the contract, that the risk of accidental loss or accidental damage of the goods passes to the buyer, since the moment of delivery of the goods to the first carrier, and at the request of the buyer could be found invalid by a court, if, at the time of conclusion of the contract the seller knew or ought to have known that the goods are lost or damaged and not reported it to the buyer.
Article 412. The Seller’s Obligation on the Preservation of Sold Goods
When the property right, the right of economic management or operational control pass to the buyer before delivering the goods, the seller shall be obliged to preserve the goods before transferring and prevent its deterioration.
The buyer shall be obliged to reimburse to the seller the necessary costs, unless otherwise provided by agreement of the parties.
Article 413. The Seller’s Obligation is to Transfer the Goods that are Free from the Rights of Third Parties
1. The seller is obliged to transfer the goods, which are free of any rights of third parties, except in the case, where the buyer has agreed to take the goods, which are encumbered to the rights of third parties.
Failure by the seller of this duty gives the buyer the right to demand a reduction in the price of goods or cancellation of the contract and claim damages, if it can be shown that the buyer knew or should have known about the rights of third parties on this product.
2. The rules provided in paragraph 1 of this Article shall be applied in the case at the time of goods transferring to the buyer, whether the claims of third parties are presented, and of which the seller is aware about the claims, which are subsequently found to be legally valid.
Article 414. The Seller’s Liability in the Case of Seizure of the Goods from the Buyer
1. In the case of seizure the goods from the buyer by third parties on the grounds that arose before the execution of the contract, the seller must compensate the buyer incurred losses, unless it shall be proved that the buyer knew or should have known about the presence of these grounds.
2. The parties' agreement upon releasing of the seller from the liability or limitation of liability is not valid in the case of demand of the purchased goods from the buyer by third parties.
Article 415. Obligations of the Buyer and Seller in the case of filing out for the Seizure of Goods
1. If a third party gives the buyer the suit on seizure of goods on the grounds of arisen execution of the contract, the buyer is obliged to bring the seller the participation in the case, and the seller is obliged to enter the case on the side of the customer.
2. The non-involvement by the buyer of the seller to the case shall release the seller from the liability to the buyer, if the seller can prove that by participating in the case, he (she) could have prevented the seizure of goods, which is sold by the buyer.
3. The seller, who has been attracted to the participation in the case, but did not take part in it, shall be deprived of the right to prove the buyer’s irregularity on proceedings in the case.
Article 416. The Consequences of Breaching Duties on Transferring the Goods
1.If the seller refuses to hand over the sold goods to the buyer, the buyer shall be entitled to refuse on the performance of the sale contract.
2.When the seller refuses to transfer a certain individual thing, the buyer shall be entitled to present a claim to the seller under Article 355 of this Code.
Article 417. Consequences of Breaching Duties to Transfer Ownership and Documents Relating to the Goods
1. If the seller shall not supply or refuses to hand over the accessories of the goods or documents belonging to it, which he (she) must pass (paragraph 2 of article 408 of the Code) to the customer, the buyer has the right to appoint him a reasonable time their transfer.
2. In the case, where the accessories or documents relating to the goods are not delivered within the specified period of time by the seller, the buyer shall be entitled to refuse to accept the goods, unless otherwise provided by the contract.
Article 418. The Quantity of Goods
The quantity of the goods, which shall be transferred to the buyer, in the relevant units or in monetary terms provided by the contract. The condition on the number of goods may be agreed by the contract establishing the order of its definition.
Article 419. The Consequences of a Breach of the Contract on the Quantity of Goods
1. If the seller has transferred to the buyer fewer goods than defined by the contract in breach of the contract, the buyer has the right, to demand the transfer of the missing quantities or refuse from the transferred goods and its payment, and if he (she) paid for to demand the return paid for a sum of money, unless otherwise provided by the contract.
2. In the case, when the seller has delivered the goods to the buyer in an exceeding quantity that is specified in the contract and the buyer must notify the seller in accordance with paragraph 1 of Article 436 of this Code. If the seller shall not be ordered the goods within a reasonable time after receiving the message from the buyer, the buyer shall have the right to take all the goods, unless otherwise provided for by the contract.
3. In the case, when the buyer shall accept the goods in an exceeding quantity, which is specified in the contract, the goods shall be paid at the price in accordance with the contract defined for the goods, if a price is not determined by agreement of the parties.
Article 420. The Range of Goods
If the contract of sale shall be subject to transfer the goods in a certain ratio by, models, sizes, colors and other characteristics (range), the seller must give the buyer the goods in assortment, agreed to by the parties.
Article 421. The Consequences of a Breach of the Contract on the range of Goods
1. When transferring the range of goods, which is specified in the contract by the seller, and is not appropriate to the contract, the buyer has the right to refuse their acceptance and payment for it, and to demand the return of money, if they have already paid.
2. If the seller has transferred to the buyer, the goods in violation of the terms of the contract, along with the goods, which range corresponds to the contract, the buyer shall be entitled to choose:
1) to accept goods that comply with the range terms of the contract, and abandon the rest of the other goods;
2) to abandon all of the transferred goods; 3) to require the replacement of goods, which is not appropriate with the terms on the
range of goods provided by the contract; 4) to accept all the transferred goods. 3. When refusing of goods, which assortment does not appropriate to the contract, or the
request for replacement of the goods, which is not appropriate with the contract, the buyer shall be entitled to refuse to pay for these goods, and to demand the return of money, if they have already paid.
4. Products that do not appropriate with the terms of the contract on the range shall be considered to adopted, if the buyer within fifteen days after their receiving, shall not inform the seller about his (her) rejection of goods.
5. If the buyer has not abandoned from goods assortment, which do not appropriate with the contract, he (she) shall be obliged to pay them on the price agreed with the seller. If the seller has not taken the necessary measures to harmonize prices within fifteen days, the buyer shall pay for the goods at a price, which was generally charged for similar goods, under comparable circumstances at the moment of conclusion of the contract.
6. The rules of the present Article shall be applied unless otherwise provided by the contract of sale.
Article 422. The Quality of the Goods
1.The seller is obliged to transfer to the buyer, the goods which quality should be corresponded to the contract.
2. When the conditions on the quality of goods are absent in the contract, the seller is obliged to transfer the goods, which are appropriate for the purposes for what this of goods are generally used.
If the seller when concluding a contract has been concluded about the specific purposes of acquiring the goods by the buyer, the Seller shall be obliged to transfer the goods, which are fit for usage in accordance with these purposes.
3. When selling goods on the sample and (or) on the description, the Seller shall be obliged to transfer the goods to the buyer, which are corresponded to the sample and (or) description.
4. If in accordance with the legislative acts, which provides the order on the mandatory requirements to the quality of the sold goods, the Seller, who engaged in entrepreneurial activity, shall be obliged to transfer the goods to the Buyer , which are corresponding to these mandatory requirements.
Under the agreement between the Seller and the Buyer can be transferred goods, which are corresponded to the high quality requirements compared with the mandatory requirements , which were set out in the order established by legislative acts.
5. The goods, which the seller shall be obliged to transfer to the buyer, shall comply with the requirements of this Article, at the time its transferring to the buyer, unless a different time for determining conformity with these requirements are not provided by the contract and it within a reasonable time should be suitable for the purpose for which this of goods are generally used.
Article 423. Expire Date of Goods
1. Legislation, regulatory requirements of State standards or other mandatory rules can be defined the period of time after which the goods are considered to be unfit for its intended use (expire date), as well as cases where the expire date of the product is indicated on the product.
2. Goods, for which set the expiration date, the Seller is obliged to transfer to the Buyer, taking into account that they can be used for intended purpose until the expiration date.
Footnote. Article 423 as amended by the Law of the Republic of Kazakhstan dated 10.07.2012 No. 31-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 424. Calculation of the Expiration Date of Goods
The expiration date of the goods shall be determined by the period of time calculated from the date of its producing, and during which time the goods are fit for usage or by the date before which the goods are fit for usage.
Article 425. Guarantee of the Quality of Goods
1. In the case where the contract provides the seller’s guarantee on the quality of the goods, the Seller is obliged to transfer the goods, which shall meet the requirements of Article 422 of the Code, for a period of time established by the contract (warranty period).
2. Guarantee of the quality of the goods extends to all its constituent parts (components), unless otherwise provided by the contract.
Article 426. The Procedure for Calculating the Guarantee Period
1. The warranty period shall begin from the moment of transfer of the goods to the buyer ( article 410 of the this Code), unless otherwise provided by the contract.
2. If the buyer is unable to use the goods, due to circumstances beyond the control of the seller and for which has been established the warranty period by the contract, the warranty period shall not be flowed until the relevant circumstances shall not be fixed by the seller.
Unless another is provided by the contract, the warranty period shall be extended by the time during which the goods could not be used because of the deficiencies found in it, providing a notice of the seller about the defects of goods in accordance with the Article 436 of this Code.
3. Unless another is provided by the contract, the warranty period for a complementary part of the product shall be considered equal to the warranty term of the product and will run concurrently with the warranty period for the main product.
4. Unless another is provided by the contract, the warranty period shall be started to run again, when replacing the product (components).
Article 427. Verification of the Quality of the Goods
1. If legislation or contract provides for verification of the quality of the goods, it must be carried out in accordance with the requirements provided by them.
In cases, where the State standards and other normative documents on standardization set mandatory requirements to the verification of the quality of goods, the quality control should be carried out in accordance with the instructions contained therein.
2. If the conditions for verification the quality of the goods are not provided in the manner prescribed by paragraph 1 of this Article, the verification of quality of the goods shall be carried out in accordance with the customs of trade or other commonly used terms of the verification of the goods that to be transferred under the contract.
3. If the legislative acts, the mandatory requirements of State standards and other normative documents for standardization or contract provides for the seller’s duty to verify the quality of the goods, which are transferred to the buyer (testing, analysis, inspection, etc.), the seller must provide the buyer, upon of his (her) request evidence of verification the quality of the goods.
Footnote. Article 427 as amended by the Law of the Republic of Kazakhstan dated 10.07.2012 No. 31-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 428. The Consequences of Transfer of Goods that are of Defective Quality
1. If defects in the goods had not been stipulated by the seller, the buyer, who handed over the goods of inadequate quality may choose to require from the seller:
1) proportionate reduction of the purchase price; 2) free elimination of the goods defect within a reasonable time; 3) compensation of their expenses for elimination of defects in the goods; 4) replacement of inadequate quality of goods to the goods, which are appropriate to the
contract; 5) failure to execute the contract and return the paid amount of money for the goods. Terms and conditions of the buyer’s refusal from the rights provided in this paragraph
shall be invalid. 2. In the case of inadequate quality of the parts of goods, which are included in series (
article 432 of the this Code), the buyer has the right in respect of this part of the goods to exercise the rights provided in paragraph 1 of this Article.
3. In the case where the seller of the goods of improper quality was not its manufacturer, the requirements for replacement or free removal of defects may be brought on the buyer's choice to the seller or the manufacturer.
4. The rules of this Article shall apply, unless otherwise established by the this Code or other legislation.
Article 429. Material Defects for which the Seller Bears Responsibility
1. The seller shall be responsible for defects of the goods if the buyer can prove that they have arisen before the transfer to the buyer or for reasons that have arisen before that moment .
The seller shall be responsible for defects of the sold goods and in the case if he (she) did not know about them. The agreement to release the seller from liability or its limitation is not valid.
2. In respect of the goods for which the seller provided the guaranteed quality, and the seller shall be responsible for defects of goods, unless he (she) proves that the defects in the goods arose after their transferring to the buyer as a result of the breach of the rules regarding the usage of the goods by the buyer or its storage or actions of third parties or force majeure.
Article 430. Terms of Detection the Defects in the Transferred Goods
1. Unless another is not provided by legislative acts or contract, the buyer has the right to bring claims arising from the defects of goods that are found in the terms, which are established in this Article.
2. If the goods do not have warranty period or expiration date, requirements related to defects in the goods may be brought by the buyer, in the case if the deficiencies in the sold goods were found within a reasonable period of time, but within two years from the date of
transfer of the goods to the buyer, if longer terms are not set by legislative acts or contract. Deadline for identifying defects in the goods, which are transported or sent by mail, is calculated from the day of receipt of the goods at the place of destination.
3. The buyer shall be entitled to bring claims arising from defects of goods, if the goods have warranty period and defects are found within this period.
In the case, where the component parts in the contract is quarantined for a shorter duration than the main product, the buyer shall be entitled to make claims about the shortcomings of the component parts, if they are found within the warranty period on the main product.
If the component of the product is installed in the contract a warranty period longer than the warranty period for the main product, the buyer shall be entitled to make a claim about the shortcomings of the product, in the case if the deficiencies in the component product are found within the warranty period on it, regardless of the expiration of the warranty period on the main product.
4. According to the goods, which the expiry date has been set, the buyer is entitled to make a claim about the shortcomings of the goods if they are detected during the expiry day of the product.
5. In cases where the contract warranty period is less than two years and material defects are found by the buyer after the expiration of the warranty period, then within two years from the date of transfer of the goods to the buyer, the seller shall be liable if the buyer proves that the material defects occurred before the transfer of goods to the buyer or for reasons that have arisen so far.
Article 431. Completeness of the Goods
1. The seller must transfer the goods to the buyer which are conformed to terms of the contract on completeness.
2. If the contract is not defined completeness of the goods, the seller must transfer goods to the buyer, the completeness of which is determined by the business practice or another specified requirements.
Article 432. Set of Products
1. If the contract provides for the seller’s obligation to transfer a certain set of goods in the set (set of products) to the buyer, the obligation is considered to be executed since the moment of transferring all goods included in the set.
2. Unless another is provided by the contract or follows from the nature of the obligation, the seller is obliged to transfer all the goods included in the set to the buyer, at the same time.
Article 433. Consequences of the Transfer of Products on Incomplete Set
1. In the case of transferring incomplete goods (Article 431 of this Code), the buyer may, at his (her) discretion to demand from the seller:
1) a proportional reduction of the purchase price; 2) the re-supply of goods within a reasonable time; 3) a replacement of the incomplete goods to complete; 4) failure to perform the contract and return the amount of money paid for the goods. 2. Consequences provided in paragraph 1 of this Article shall also apply in the case of
seller’s violation of obligations on transferring a set of products to the buyer (Article 432 of this Code), unless another is provided by law or contract or follows from the nature of the obligation.
Article 434. Tare and Packaging of Goods
1. Unless another is provided by the contract or follows from the nature of the obligation or the nature of the goods, the seller is obliged to transfer the goods in the tare and (or) package.
2. If the contract does not specify requirements for tare and packaging, the goods must be contained or packaged in the usual manner for such goods or, in the absence of it, should be done in the method for preservation of the goods of this under normal conditions of storage and transportation.
3. If legislation is provided with mandatory requirements for tare and (or) packaging, the seller, who engaged in entrepreneurial activity, shall be obliged to transfer the goods in the container and (or) package, which respond to these regulatory requirements.
Article 435. Consequences of Transferring the Goods Without Tare and (or) Packaging and (or) Improper Tare and (or) Packaging
1. In the case, when goods which require containing and (or) packaging are transferred to the buyer without containing and (or) packaging or improper containing and (or) packaging, the buyer has the right to require the seller to contain and (or) pack the goods appropriately or replace improper goods and (or) packaging, unless the contract, the nature of the obligation or the nature of the goods stipulate otherwise.
2. Instead of presenting the requirements specified in paragraph 1 of this Article to the seller, the buyer shall be entitled to present to him (her) any other requirements arising from the transfer of inadequate quality goods (Article 428 of this Code).
Article 436. Notice to the Seller about the Improper Execution of the Contract
1. The buyer must notify the seller on breaching of the contract on the number, range, quality, completeness, containing and (or) packaging of the goods within the period
prescribed by legislative acts and otherwise, normative legal acts, or contract, and if the term is not set, within a reasonable time after breaching the terms of the contract, which is found on the basis of the nature and destination of goods.
2. In case of non-execution of obligations under paragraph 1 of this Article by the buyer, the seller has the right to completely or partially refuse to meet the requirements of the buyer, if he (she) shall prove that late notice is caused inability to respond to the requirements of the buyer or led to the seller disproportionate costs in comparison with those, which he (she) would have occurred if he (she) was timely notified on breaching of the contract.
3. If the seller knew or should have known that the goods, which are transferred to the buyer do not meet the requirements of the contract before, he (she) shall not be entitled to rely on the buyer's failure to perform obligations under paragraph 1 of this Article.
Article 437. The Buyer’s Responsibility to Take the Goods
1. The buyer must accept the goods transferred to him (her) by the seller, except the cases, where in accordance with the rules of this chapter, he (she) shall have the right to require replacement of the goods or cancel the contract.
2. Unless another is provided by legislation or contract, the buyer is obliged to take actions, which in accordance with the usual requirements are necessary on his (her) part to ensure the transfer and receipt of the goods.
3. In cases, where the buyer in violation of the legislation or contract does not accept or refuse to accept the goods, the seller shall be entitled to require recipient of the goods or cancel the contract from the buyer.
Article 438. The Price of the Goods
1. The buyer is obliged to pay costs under the contract, or, if it is not provided for and cannot be determined by the contract, on the basis of its terms, at a price determined in accordance with the rules of Article 385 of the this Code, and to make actions on his (her) own expense, which according to the legislation, contract or usual requirements are necessary to make the payment.
2. When the price is set depending on the weight of the goods, it shall be determined by the net weight, unless another is provided by the contract.
3. If the contract provides that the price of the goods is changed depending on the indicators for the price of the product (cost, expenses, etc.), but does not define a way to revise the prices, price shall be determined on the basis of the ratio at the time of conclusion of the contract and at the time of the execution of the obligations on transfer of the goods. In the case of delay the obligation to transfer goods by the seller, the price shall be determined
on the basis of the ratio at the time of conclusion of the contract and on the day of transfer the goods provided by the contract, or if this date is not defined, on the day determined in accordance with Article 277 of this Code.
The rules provided in this paragraph shall be applied, unless another is provided by this Code and other legislative acts, or followed from the nature of the obligation.
Article 439. Payment for Goods
1. If the terms of the contract and legislative acts do not obligate to pay the price for a certain period of time, the buyer after the transfer of the goods or documents for this goods shall be obliged to pay it without delay.
2. If the contract does not provide the installment payment for the goods, the buyer is obliged to pay the seller the amount of total price of transferred goods.
3. If the buyer does not pay for transferred goods in accordance with the contract, the seller has the right to demand payment of the goods and the penalty payment for the use of other people's money (Article 353 of this Code).
4. If the buyer is in breach of contract, refuses to accept and pay for the goods, the seller may choose to ask for payment of goods or cancel the contract.
5. In cases where the seller according to the contract shall be obliged to transfer the buyer, except unpaid another goods, he (she) is entitled to suspend the transfer of those goods until full payment of all previously transferred goods, unless another is provided by legislative acts or contract.
Article 440. Advance Payment for Goods
1. In cases, where the contract provides the buyer's obligation to pay the price in full or in part before the transfer of goods (advance payment) by the seller, the buyer must make payment within the period stipulated in the contract, and if the term of the contract did not provide it within the period determined in accordance with Article 277 of this Code.
2. In the case of non-execution of the obligation to pre-payment according to the contract by the buyer, the rules are provided in Article 284 of this Code.
3. In cases where the seller, who has received the amount of advance payment, does not perform his (her) duties on transferring the goods within the prescribed period (article 409 of this Code), the buyer has the right to demand the transfer of the paid goods or refunding of the advance payment for the goods, which the seller has not transferred.
4. If the seller fails to perform the obligation to transfer pre-paid goods and another is not provided in the contract of sale, the forfeit to the amount of the advance payment shall be paid in accordance with Article 353 of this Code, from the day when transfer of goods are made
under the contract and before the day of transfer of the goods to the buyer or return the amount paid in advance to them. A contract may provide the seller’s obligation to pay the penalty to the amount of the advanced payment from the date of receipt of this amount.
Article 441. Payment for Goods Sold on Credit
1. In cases, where the contract provides for payment of the goods after a certain period of time after its transferring to the buyer (sale of goods on credit), the buyer shall make payment within the period provided by the contract, and if the term of the contract is not provided it, within the period determined in accordance with Article 277 of this Code.
2. In the case of non-execution of the obligation on transferring goods by the seller, rules are provided for in article 284 of the Code.
3. In cases, where the buyer, who has received the goods, does not perform the obligation to pay for it within the period provided in the contract, the seller has the right to require the payment for transferred goods or returning the unpaid goods.
In cases, where the buyer do not execute the obligation to pay for transferred goods within the contract period and another is not provided by this Code and the contract, the forfeit on the overdue amount is payable in accordance with Article 353 of this Code from the date when the goods should have been paid and until the date of payment for the goods by the buyer.
4. The contract may provide the buyer's obligation to pay a forfeit to the amount which correspond to the price of goods, beginning from the day of the transferal of goods by the seller.
5. Sale of goods on credit is performed at a price in effect on the day of the sale. Subsequent change of prices on sold in credit goods shall not be recalculated, unless another is provided by legislative acts or contract.
Article 442. Payment by Installments on the Sale of Goods in Credit
1. The contract for the sale of goods on credit may provide an installment payment. Contract for the sale of goods on credit with the condition on the installment payment is
considered to be concluded, when in it, along with other essential terms of the contract are provided the sale, the price, the order, terms and amount of payments.
2. When a buyer does pay for the goods, which sold on credit within the contract period, the seller, unless another is provided by the contract, shall be entitled to cancel the contract and demand the return of sold goods, except in cases where the amount of received payments from the buyer, more than half the price of goods.
Article 443. Goods Insurance
1. The contract of sale may provide the seller’s or the buyer’s obligation to insure the goods, unless another is provided by legislative acts.
2. In cases, where the party, who is obliged to insure the goods, does not provide insurance in accordance with the terms of the contract, the other party shall have the right to insure the goods and require from the obligated party the compensation of insurance costs or cancel the contract.
Article 444. Preservation of the Ownership Right on Goods for the Seller
1. In cases, where the contract provides that the ownership of the goods is only transferred to the buyer until the payment of goods or other circumstances, The buyer shall not be entitled to dispose of the goods, or dispose of them in any other way, until the ownership of goods is transferred to him (her), unless another is provided by legislative acts or contract or followed from the purpose and characteristics of the goods.
2. In cases, when the transferred goods shall not be paid within the period provided by the contract or other conditions have not been met, under which the ownership right passes to the buyer, the seller shall be entitled to require the return of goods from the buyer, unless an alternative arrangement is provided by the contract.
Paragraph 2. Retail sale
Article 445. Contract of Retail Sale
According to the contract of the retail sale, the seller, who carries out entrepreneurial activity for the sale of goods, shall be obliged to transfer goods to the buyer, which are usually intended for the personal, family, household or other use and are not related with business activities.
Retail sale contract is public (Article 387 of this Code).
Article 446. The Form of the Retail Sale Contract
Retail sales contract is considered to be concluded in the proper form, from the date of the seller’s issue of a cash or sale receipt or other document confirming the payment to the buyer, unless another is provided by legislative acts or by the contract of retail sale, including the terms of forms or other standard forms, where the buyer is joined (Article 389 of this Code).
If the buyer does not have these documents, he (she) shall not be deprived from the possibility to refer to the testimony in support of the conclusion of the contract and its terms.
Article 447. Public Offer of Goods
1. Exhibition of goods, demonstration of their samples or giving information about the sold goods (descriptions, catalogs, photos, etc.) at the place of sale is a public offer, regardless of whether the price and other terms of the contract of sale are specified, except in the case where the seller is clearly demonstrates that the goods are not intended for sale.
2. The offer of goods specified in advertising, catalogs and other descriptions of the goods , which is addressed to the general public in the inappropriate place for the sale of goods and if it does not contain the essential terms of the contract of sale, shall not be recognized as a public offer.
Article 448. Submission of Information about the Goods to the Buyer
1. The seller must provide the buyer with the necessary and accurate information about the goods offered for selling. This information must meet the requirements specified by legislative acts and requirements, which are usually required in retail trade to the content and presentation of this information.
2. The buyer has the right to inspect the goods, and if it is possible due to the nature of the goods and is not contrary to the rules, which are adopted in the retail sector, require in his (her ) presence to test or demonstrate the usage of the goods.
3. The seller, who does not provide the buyer with an opportunity to obtain relevant information about the goods shall be responsible for the material defects in the goods arising after the transferring of goods to the buyer, and against which the buyer can prove that they have arisen due to the lack of available information.
Article 449. Contract with the Condition of the Buyer’s Acceptance of Goods Within a Certain Time
1. The parties may conclude a contract with a condition of acceptance of goods in a certain contract period by the buyer, and during which the goods cannot be sold to another buyer.
2. Unless another cause is provided by the contract, the buyer's failure to appear or to perform other necessary actions to take goods in a certain contract period may be considered by the seller as a buyer’s failure to perform the contract.
3. Additional costs of the seller for the transferring of goods to the buyer in a certain contract period are included in the price of the goods, unless another is provided by legislative acts or contract.
Article 450. Sale of Goods on Samples
1. Contract of retail sales can be concluded on the basis of the buyer's awareness with a sample of the goods (its description, products catalog, etc.) offered by the seller.
2. Unless another is provided by legislative acts or contract, the contract shall be executed from the moment of delivery the of goods to the place specified in the contract, and if the place of delivery are not specified in the contract, from the time of delivery of the goods to the buyer at the place of residence of the citizen or the location of the legal entity.
3. The buyer shall be entitled to refuse to perform the contract before the transfer of the goods, and subject to compensate to the seller reasonable expenses related to the action for performance of the contract.
Article 451. Sale of Goods with the Use of Machines
1. In cases, where the sale of goods is carried out using machines, the machine owner is obliged to inform buyers with information relating to the product (name, quantity, unit price, etc.), this can be done by placing a sign on the machine or by otherwise informing customers on the name of the seller (company name), its location, mode of operation, as well as steps that need to be undertaken in order for the buyer to purchase the goods.
2. The contract is considered to be concluded from the moment, when the buyer takes actions necessary for receipt of the goods.
3. If the buyer is not provided with the paid goods, the seller shall be obliged to ensure the immediate delivery of the goods or refund the amount of money paid for this product to the buyer.
Article 452. Contract with the Condition of the Delivery of Goods to the Buyer
1. In cases, where the contract has been concluded with the condition of delivery of the goods to the buyer, the seller shall be obliged to deliver the goods to the place specified by the buyer within a certain contract period.
2. The contract shall be considered to be executed by the seller from the time of delivery the goods to the buyer, and if his (her) absence, to any person presenting a receipt or other document showing the contract or to obtain delivery of the goods, unless another is provided by legislative acts, by contract or followed from the nature of the obligation.
Article 453. Price and Payment
1. The buyer is obliged to pay for the goods at the price advertised by the seller at the time of conclusion of the contract, unless another is provided by legislative acts or followed from the nature of the obligation.
2. In cases, where the contract provides advanced payment for the goods (article 440 of this Code), and the non-payment for the goods by the buyer in a certain contract period shall be recognized as a buyer's refusal to perform the contract, unless another condition is provided by agreement of the parties.
3. To contracts for the retail sale of goods on credit, including the terms of installment payment for the goods, the rules provided in the second part of paragraph 3 of Article 441 of this Code are not applied.
4. The buyer is entitled to make payment in full at any time within the period specified on installment payment for the goods in the contract.
Article 454. Exchange of Goods of Proper Quality
1. The buyer is entitled, within fourteen days from the date of transfer of non-food goods, unless a longer period is not declared by the seller, to exchange the purchased goods on a similar product of a different size, shape,, color, configuration and so on at the place of purchase or other places that are declared by the seller, if there are difference in price, the seller need to be recalculated.
2. In the absence of the necessary goods for the exchange from the seller, the buyer has the right to return purchased goods to the seller and have their payment reimbursed.
3. The buyer's claim on the exchange or return of the goods shall be satisfied, if the goods have not been used and are in a saleable condition and there is an evidence of purchasing the goods from this seller.
4. The list of goods, which are not eligible for exchange or return under the grounds specified in the present Article, shall be determined in accordance with the procedure prescribed by law.
Article 455. Rights of the Buyer in case of Sale to Him (Her) of the Goods of Improper Quality
1. The buyer, to whom had been sold the goods of improper quality, and if its shortcomings have not been specified by the seller, he (she) shall be entitled to carry out the actions referred to in paragraph 1 of Article 428 of this Code, and the buyer on the demand of the seller and at his (her) expense must return the received goods of inadequate quality.
2. When returning to the buyer the amount of money paid for the goods, the seller is not entitled to deduct from it the amount on which the value of the goods has decreased, due to the total or partial use of the goods, loss of their identity, and etc.
Article 456. Refund of the Price Difference When Replacing the Goods Reducing the Purchase Price and the Return of Goods of Inadequate Quality
1. When replacing the goods of inadequate quality for the goods of appropriate quality according to the contract the seller has no right to claim compensation for the difference between the price of goods specified in the contract, and the price of the goods, existing at the time of replacement or a court’s decision to replace the goods.
2. When replacing the goods of inadequate quality for a similar, but different in size,,, etc. appropriate quality goods, the difference between the price of the changed goods at the time of replacement and the price of the goods, which are transferred to replace the goods of inadequate quality shall be compensated.
If the requirement of the buyer is not satisfied by the seller, these prices are determined by the court's decision on replacement the goods.
3. In the event a claim for a discount in the purchase price of goods is made, the price of the goods at the time of presentation of the claim for the price reduction shall be taken into account, and if the demand is not satisfied voluntarily at the time of the court's decision to reducing prices.
4. When returning the goods of improper quality to the seller, the buyer shall be entitled to demand the compensation on the difference between the price of goods specified in the contract, and the price of the relevant goods at the time for voluntary satisfaction of the buyer ’s requirements, and if the demand shall not be satisfied freely - at the time of the court's decision.
Article 457. The Seller’s Liability and Performance Obligation in kind
In the case of non-performance of an obligation by the seller under the retail sale contract, compensation of loses and payment of the forfeit does not release the seller from the performance of the obligation in kind.
Paragraph 3. Delivery
Article 458. Delivery Contract
According to the delivery contract, the seller (supplier), who is an entrepreneur, shall be obliged to transfer to the due dates or time the produced or purchased goods to the buyer for use in business or for other purposes, which are not related to personal, family, household and other similar use.
Article 459. Dispute Settlement at the Conclusion of the Delivery Contract
1. If the parties disagreed on certain terms of the contract at the conclusion of the delivery contract, the party that has offered to conclude the contract and received from the other party a proposal to harmonize these conditions shall within thirty days of the receipt of the proposal , if another is agreed to by the parties, adopt measures to harmonize the conditions of the contract or to notify in writing form the other party of the rejection of its conclusion.
2. The party, which has received the proposals on appropriate terms of the contract, but not adopted measures to implement the conditions of the delivery contract and not notified the
other party of its in ability to meet the delivery contract, which is provided in paragraph 1 of this Article, shall be obliged to compensate for losses, caused by the deviation from adhering to the terms and conditions of the contract.
Article 460. Duration of the Delivery Contract
1. A delivery contract may be concluded for a period of one year, for a period of more than one year (long-term contract) or for another duration, which is stipulated by the agreement of the parties.
If the contract validity period is not defined and followed from the nature of the obligation , the contract is deemed to be concluded after a period of one year.
2. If in the long term delivery contract the quantity of the goods, which are to be delivered or other terms of the contract are defined for a year or longer, the contract shall establish a procedure agreed by the parties on appropriate conditions for subsequent periods until the end of the contract period. If there is no agreement in the contract about the arrangement, the contract is deemed to be concluded for a year or period defined by the terms of contract.
Article 461. Delivery Periods
1. If the parties provide for delivery of goods in separate lots during the period of the contract and there is no defined a delivery periods of goods in separate batches (periods of delivery), the goods shall be delivered in equal parties on a monthly basis, unless another is followed from the legislative acts the business practice or the nature of the obligation.
2. Along with the definition of the periods for delivery the contract may set a timetable for the delivery of goods (weekly, daily, hourly, etc.).
3. Early delivery of goods can be carried out with the consent of the buyer. 4. Goods delivered ahead of schedule and accepted by the buyer, shall be counted against
the quantities of goods, that are to be delivered in the next period.
Article 462. The Order of Goods Delivery
1. Delivery of goods is undertaken by the supplier shipment (transfer) of goods to the buyer under the contract or to the person named in the contract as the recipient.
2. In cases, where the contract provides the right of the buyer to give instructions to the supplier on the shipment of the goods to the recipients (shipping order), shipping (transfer) of the goods shall be carried out by the supplier to the recipients specified in the shipping order.
3. The contents of the shipping order and terms of its direction to the supplier are defined by the contract. If the terms of the direction of shipping order are not provided in the contract, it shall be sent to the supplier not later than thirty days prior to the delivery period.
4. The buyer’s failure on providing the shipping orders on time shall give to the supplier the right to refuse from the contract, unless another is provided by the contract.
Article 463. Delivery of Goods
1. The goods are delivered by the supplier on shipping them by transport, which is provided in the contract, and on the conditions stipulated in the contract.
2. If the contract is not determined what of transport or on what conditions they are delivering, the right to choose the mode of transport or determining the conditions of delivery of goods belongs to the supplier, unless another is followed from the legislation, the business practice or the nature of the obligation.
Article 464. Compensation for Incomplete Delivery of Goods
1. Supplier, who allowed to deliver incomplete goods in a separate period of delivery, shall be obliged to compensate for an outstanding number of goods in the next period (periods ) during the term of validity of the contract, unless another is provided by the contract.
2. Under a long-term contract, an outstanding number of goods, which are not delivered on a separate period of delivery, shall be compensated in the next period (periods) within the year in which is allowed under-delivery of goods, unless another is provided by the contract.
3. In the case, where the supplier is shipping the goods to several recipients, who specified in the contract or in the shipping orders, the goods, which are delivered in excess of the quantity to a single recipient, provided in the contract or in the shipping order, do not count in covering of shortages of other recipients and do not fulfill the supplier’s obligations to them, unless another specification is provided in the contract.
4. The buyer may, by notice to the supplier, refuse acceptance of the goods for which the delivery date has expired, unless another provision is provided in the contract. The buyer is obliged to accept and pay for the goods which are delivered until the supplier’s notification.
Article 465. Assortment of Goods for Compensation of Incomplete Delivery
1. The range of goods which is subject to short supply replenishment is determined by agreement of the parties. If there is no agreement, the supplier shall be obliged to compensate for the shortfall of goods in the period in which the shortfall was made.
2. Delivery of the goods of one in more quantity than specified in the contract, shall not be sufficient to compensate delivery of goods of another belonging to the same order, and shall be subject to completion, except the case, where delivery is made with the prior written consent of the buyer.
Article 466. Acceptance of the Goods by the Buyer
1. The buyer (recipient) is obliged to take all necessary actions to ensure the receipt of the goods supplied under the delivery contract.
2. The goods adopted by the buyer (recipient) must be inspected by him (her) at the period of time determined by legislative acts, the delivery contract or business practices.
The buyer (recipient) shall at the same time check the quality and quantity of the goods in the order established by legislation, contract or business practices, and the supplier shall be immediately notified in writing about the nonconformity or deficiencies of goods.
3. In the case, where the goods are delivered by a shipping company, the buyer (recipient) shall verify the conformity of the goods by the data specified in the transport and accompanying documents, as well as to take the goods from the delivery company in compliance with the rules stipulated by legislative and other normative legal acts regulating the activities of transport.
Article 467. Safekeeping of Goods Not Accepted by the Buyer
1. When a buyer (recipient), in accordance with legislative acts, or the delivery contract, refuses to accept the goods dispatched by the supplier, he (she) is obliged to ensure the safety of this product (safekeeping) and shall promptly notify the supplier.
2. The supplier shall collect the goods, having been accepted by the buyer (recipient) in the meantime for their safekeeping, or dispose of them within a reasonable period of time.
If the provider does not collect the goods in this period of time, the buyer is entitled to sell the goods or return it to the supplier.
3. The necessary costs incurred by the buyer (recipient) in connection with the adoption of the goods for safekeeping, the sale of goods or the return to the seller, shall be compensated by the supplier.
The proceeds from the sale of the goods shall be forwarded to the supplier with the deduction of the costs incurred by the buyer.
4. In cases, where the buyer without basis established by legislative acts or contract does not accept the goods from the supplier or denies his acceptance of the goods, the supplier has the right to demand payment from the buyer for the goods.
Article 468. Inspection of the Goods (Sampling)
1. The delivery contract may provide for the buyer’s receipt of the goods at the location of the supplier.
2. If the period of sampling is not established by the contract, the selection of the goods of the buyer (recipient) should be carried out within a reasonable period after the supplier’s notification on readiness of the goods.
3. When the delivery contract provides that the buyer chooses his selection of goods in the location of the supplier, the buyer shall be obliged to inspect the goods at the occasion of their
transfer, unless another provision is provided by legislative acts or followed from the nature of the obligation.
4. If the buyer (recipient) does not make a choice of goods within the delivery contract period, and in absence of it - within a reasonable period after the notification of readiness of the goods, the supplier shall be given the right to withdraw from the contract or to require the buyer to pay for the goods.
Article 469. Payments for the Delivered Goods
1. The buyer shall pay for the supplied goods in compliance with the order and the form of payment specified in the contract. If an agreement of the parties does not specify the order and form of payment, the calculations shall be carried out by the payment orders.
2. If the contract provides for the delivery of goods in parts, which together make up a kit for a single article, the buyer's payment shall be made after shipment (sample) of the last part of the kit, unless another provision is provided by the contract.
3. If the contract provides that the payment for the goods is carried out by the recipient ( the payer) and the last unreasonably refused to pay or failed to make payment for the goods within the contract period, the supplier has the right to demand payment for the delivered goods from the buyer.
Article 470. Tare and Packaging
1. Unless another is provided by the contract, the buyer (recipient) must return the provider returnable tare and means of packaging in which the goods are supplied, in the manner and within the period of time prescribed by legislative acts.
2. Other tare and packaging shall be returned to the supplier only in the cases provided by the contract.
Article 471. The Consequences of the Delivery of Goods of Substandard Quality
1. The buyer (recipient), who was delivered the goods of substandard quality, shall be entitled to raise requirements under Article 428 of this Code, except in cases, when the supplier, who has received a notification of the buyer on defects of the delivered goods immediately replace the delivered goods to the goods of proper quality.
2. The buyer (recipient) who is selling the delivered goods at retail has the right to demand a replacement for goods of inadequate quality, which have been returned his consumers, within a reasonable time, unless an alternative provision is provided by the contract of supply.
Article 472. The Consequences of the Delivery of Incomplete Sets of Goods
1. The buyer (recipient), who delivered the goods with breach the conditions of delivery contract, the requirements of legislation or the usual requirements for re-supply, shall have the right to raise the requirements to the supplier under Article 433 of this Code, except the case, when the supplier, who has received the buyer’s notification on incomplete delivery of the delivered goods, shall immediately complement the goods or replace them to the complete goods.
2. The buyer (recipient) who is selling the goods in retail, shall have the right to demand a replacement of incomplete goods returned by the customer to the original supplier within a reasonable time, unless another is provided by the contract of supply.
Article 473. Rights of the Buyer in the case of Underdelivery of the Goods, Failure to Satisfy the Requirements of Defects of the Goods or Re-supply of the Goods
1. If the supplier did not deliver the quantity specified or did not comply with the buyer's claims for replacement of goods of inadequate quality or re-supply of goods within the prescribed period, the buyer has the right to purchase the undelivered goods from other persons, with the allocation of all necessary and reasonable expenses for the acquisition of the provider.
The buyer’s costs for purchasing goods from other persons in the case of supplier’s under-delivery or failure to re-supply defective goods shall be regulated by the rules provided in paragraph 1 of Article 477 of this Code.
2. The buyer (recipient) shall have the right to refuse payment for goods of inadequate quality and incomplete goods, if such goods have been paid - to demand the paid sum until the repair of deficiencies or the replacement of goods.
Article 474. The Forfeit for Short Delivery or Late Delivery of the Goods
If established by legislative acts or the contract, forfeit for short delivery or late delivery of the goods may be charged from the date specified by the contract to the date of the actual performance of the obligation, unless another procedure for forfeit is not provided by legislation or contract.
Article 475. Repayment of Uniform Obligations Under Several Delivery Contracts
1. In cases, where the supply of similar goods delivered by the supplier at the same time for several delivery contracts to the buyer is established, if the number of delivered goods is insufficient to meet the obligations of the supplier under all contracts, the delivered goods shall be counted against the performance of the contract indicated by the supplier in the implementation of the delivery or immediately after delivery.
2. If the buyer has paid to the supplier for similar goods, received in several delivery contracts and the amount of the payment is insufficient to repay the buyer's obligations under all of the contracts, the paid amount must be counted against the performance of the contract indicated by the buyer for the payment of goods or immediately after the payment.
3. If the supplier or the buyer does not exercise the rights granted to them, respectively in items 1 and 2 of this Article, the performance of an obligation, which is included in the repayment of obligations under the contract for which the term came before. If the term of obligations under several contracts occur at once, the granted execution is counted proportionally in repayment of obligations under all the contracts.
Article 476. Unilateral Non-performance of the Contract
1. Unilateral non-performance of the contract (in whole or in part) or its unilateral changing is allowed in the case of a fundamental breach of contract by one party (the second part of paragraph 2 of Article 401 of this Code).
2. Breach of contract by the supplier is significant in the following cases: 1) delivery of the goods of inadequate quality with deficiencies that cannot be resolved
within a reasonable period for the buyer; 2) repeated violation of the terms of delivery. 3. Breach of contract by the buyer is expected to be significant in the following cases: 1) repeated violations of the terms of payment of the goods; 2) repeated non-acceptance of the goods.
4. Agreement of the parties may provide for other reasons of the unilateral refusal to perform the contract or its unilateral change.
5. Delivery contract shall be terminated or amended upon receipt of notification by the other party to change or unilateral refusal to perform the contract, unless another period of termination or modification of the contract is not provided in the notification or determined by agreement of the parties.
Article 477. Calculation of Damages in Termination of a Contract
1. If within a reasonable time after the termination of the contract, due to breach of an obligation by the seller, the buyer has bought goods in replacement under the contract from another person on a high, but reasonable price, he (she) can bring to the seller a claim for damages as the difference between the price fixed in the contract and the price in the substitute transaction.
2. If within a reasonable time after the termination of the contract, due to breach of obligations by the buyer, the seller, who sold the goods to another person at a lower than provided for by the contract, but a reasonable price, the seller may claim for damages as the difference between the price fixed in the contract and the price in the substitute transaction.
3. If, after termination of the contract on the grounds provided by paragraphs 1 and 2 of this Article, is not made a deal to replace the terminated contract and this product has the current price, the party may bring a claim for damages as the difference between the price fixed by the contract and the current price at the time of termination of the contract.
The current price is the price, which is usually charged under similar circumstances for the same goods at the place, where the transfer of the goods must be made. If there is no current price at this location, can be used that current price, which is used elsewhere, which could serve as a reasonable substitute for the difference in the cost of transporting the goods.
4. Meeting the requirements of paragraphs 1-3 of this Article shall not discharge the party, who failed to fulfill the obligations of other compensation of damages, which is caused to the other party, in accordance with paragraph 4 of Article 9 of this Code.
Paragraph 4. Contraction (agricultural procurement contract)
Article 478. Contractual Agreement
1. According to the contractual agreement the producer of agricultural products shall transfer agricultural products, which are grown (produced) by him (her) to the purvey of a person who engaged in the purchase of such products for processing or sale.
2. To the relations in the contractual agreement, which are not regulated by the rules of this paragraph, shall apply the rules of the delivery contract (Article 458-477 of this Code).
Article 479. Duties of Purveyor
1. Unless another is provided by the contractual agreement, the purveyor must take agricultural products from the manufacturer at the site of its location and export it onwards.
2. In the case, where the agricultural products adopted at the place of purveyor, or other indicated place, the purveyor shall not be entitled to refuse acceptance of agricultural products in accordance with the contractual agreement and agricultural products must be transferred to the purveyor according to the terms of the contract.
The purveyor shall provide a precise definition of the quality of products according to the standards.
3. Contractual agreement may provide for an obligation of the purveyor, who is processing agricultural products, to return to the manufacturer upon his (her) request waste from processing of agricultural products with a payment of the price determined by the contract.
Article 480. Responsibilities of the Producer of Agricultural Products
Agricultural producer shall be obliged to transfer to the purveyor grown (produced) agricultural products in quantity, quality and assortment specified in the agreement of contracting.
Article 481. Liability of the Producer of Agricultural Products
The producer of agricultural products, who has not performed the obligation or inappropriately performed the obligation shall be liable if he (she) guilty.
Paragraph 5. Energy supply
Article 482. Energy Delivery Contract
1. According to the energy delivery contract, the energy provider is obliged to provide the subscriber (user), with the energy through the connected network and the subscriber agrees to pay for the energy, and comply with regime of its consumption under the contract, to ensure the safe operation of the energy networks and serviceability of devices and equipment, related to energy consumption.
2. Energy delivery contract is public (Article 387 of this Code). 3. Terms and conditions of energy supply, which are binding on the parties, shall be
determined in accordance with this code and other legislative acts.
Article 483. Conclusion and Extension of the Energy Delivery Contract
1. Energy delivery contract entered into contract with a Subscriber if he (she) has the necessary equipment, which is connected to the power supply networks in the order established by the legislation of the Republic of Kazakhstan.
2. In cases, where a subscriber under the contract of energy supply is a citizen, who is using energy for domestic consumption, the contract is considered to be concluded from the time of the first actual connection of the subscriber in the prescribed manner to the connected network.
Unless another is provided by agreement of the parties, such contract is concluded for an indefinite period and may be amended or terminated on grounds provided by Article 490 of this Code.
3. In the absence of a statement by one of the parties to terminate or amend the energy delivery contract at the end of the term, it is considered to be extended for the same period of time and under the same conditions as were provided by the contract. With the extension of the contract for the new term, its terms and conditions may be amended by agreement of the parties.
4. If one of the parties before the end of the period of validity of the contract makes proposals for the conclusion of a new contract, the relationships between the parties are governed by the previous contracts before signing a new contract.
Footnote. Article 483 as amended by the Law of the Republic of Kazakhstan dated January 8, 2003 No. 376.
Article 484. The Amount of Energy
1. The energy provider is obliged to give the subscriber the energy through the connected network in the amount specified in the contract, and in compliance with the regime, agreed by the parties. The amount of energy supplied by the power supply organization and the energy accepted by subscriber shall be determined in accordance with accounting data about its actual consumption.
2. The contract may provide the subscriber’s right to change the amount of received energy specified in the contract, subject to compensation of the costs incurred by the power supply organization in connection with securing the power supply, which is not stipulated by the contract quantity.
3. In cases, where the subscriber under the energy delivery contract is a citizen, who is using energy for domestic consumption, he (she) is entitled to use the energy in the required amount to him (her). The amount of energy, which is supplied by the power supply organization and accepted by the subscriber shall be defined by the use of energy meters, and in their absence - by calculation.
Article 485. The Consequences of a Breach of the Contract on the Amount of Energy
If the power supply organization filed through the connected network to the subscriber less energy than provided in the contract shall be applied the rules provided in Article 419 of this Code, unless another is provided by legislation, contract or followed from the nature of the obligation.
Article 486. Energy Quality
1. Quality of the energy supplied by the power supply organization shall meet the requirements set by State standards and other normative documents for standardization or by provisions in the contract.
2. In the event that the energy provider breaches the requirements for the quality of energy , the rules provided in Article 491 of this Code shall be supplied, unless another provision is provided by legislation, contract or followed from the nature of the obligation.
Footnote. Article 486 as amended by the Law of the Republic of Kazakhstan dated 10.07.2012 No. 31-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 487. Responsibilities of a Subscriber for Maintenance and Operation of Networks, Devices and Equipment
1. The subscriber shall be obliged to ensure proper technical condition and safety of existing energy networks, devices and equipment, comply with the established regime of energy consumption, as well as immediately report the power supply organization on accidents, fires, failures of energy meters and other violations that occur when using energy.
2. In cases, where the subscriber under the energy delivery contract is a citizen, who is using energy for domestic consumption, the duty to ensure the proper technical condition and safety of energy networks, as well as metering of energy consumption lies on power supplying organization, unless another is provided by legislative acts.
3. Requirements for technical condition and operation of the energy networks, devices and equipment are determined by law.
4. The subscriber is required to provide workers of energy providers with devices for monitoring the technical condition and safety of the energy networks, devices and equipment. Procedure for monitoring is carried out in compliance with the legislation.
Article 488. Payment for Energy
1. Energy payment is made for the actual amount of energy determined according to the indicators of meters, and in their absence or temporary damage according to, except for the automated commercial accounting of energy systems.
2. Settlement procedure for energy is determined by legislation or agreement of the parties .
Footnote. Article 488 as amended by the Law of the Republic of Kazakhstan dated 04.07.2012 No.25-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 489. Transfer of Energy by a Subscriber to Another Person
1. The Subscriber can transfer energy, accepted by him (her) from the power supply organization to another person through the connected network (subscriber) only with the consent of the power supply organization.
2. To the contract on the transfer of energy to the subscriber by the subscriber shall apply the rules of this Article, unless another is provided by legislative acts or contract.
3. The subscriber remains responsible to the energy provider in the case of energy being transferred to the subscriber, unless another provision is provided by legislative acts.
Article 490. Changing and Termination of the Contract
1. Outage, termination or limitation of energy supply are permitted by agreement of the parties, except in the case, when the poor condition of power plants of the provider, which is certified by the body of State Energy supervision connected to the electricity networks threatens the life and safety of citizens. The power supply organization should warn the subscriber about the outage in feed, termination or limitation of energy supply in advance.
2. Outage, termination or limitation of energy supply without the consent of the subscriber and without warning him (her), but with immediate notification of him (her) may be allowed, if it is necessary, to take urgent measures to prevent or eliminate accidents on the system of power supply.
3. Outage, termination or limitation of the energy supply for continuous cycle production is not allowed and regulated by law.
4. In cases, when the subscriber under the energy delivery contract is a citizen, who is using energy for domestic consumption, he (she) shall be entitled to cancel the contract unilaterally by providing a notice to the power supply organization and full payment for the used energy.
5. In cases, when the subscriber under the energy delivery contract is a citizen, who is using energy for domestic consumption, the power supply organization shall have the right to withhold performance of the contract unilaterally, due to non-payment by the subscriber for the used energy by providing the subscriber one month’s notice before ceasing energy supply.
Article 491. Liability Under the Contract of Energy Supply
1. In cases of non-performance or improper performance of obligations under the energy delivery contract, power supply organization and the subscriber shall be obliged to compensate the actual damage (paragraph 4 of Article 9 of this Code).
2. If, in the case of the regulation of energy consumption, which is carried out on the basis of the legislation, was allowed an outage in the power supply to the subscriber, the power supply organization shall be liable for nonperformance or improper performance of contractual obligations in the presence of its guilt.
Article 492. Application of the Rules of Energy Delivery Contract to Other Relations of Supply Through Connecting Network
1. For the relations on the supply of heat energy through the connected network the rules of electricity shall apply, unless alternative relations is provided by legislation.
2.To the relations on supplying through the connected network gas, oil and oil products, water and other goods shall apply the rules of this electricity, unless another is provided by legislation, contract or followed from the nature of the obligation.
Paragraph 6. Sale of Enterprise
Article 493. The Enterprise Sale Contract
1. According to the enterprise sale contract, the seller is obliged to transfer into the ownership of the buyer the enterprise on the whole as a property complex (Article 119 of this code), except for the rights and responsibilities, which the seller is not entitled to transfer to other persons.
2. Rights and obligations in relation to employees of the company shall pass from the seller to the buyer of enterprise in the manner prescribed by labor legislation of the Republic of Kazakhstan.
3. The right to use a company name, trademarks, service marks and other means of individualization of the seller and his (her) production, performed works or services, also the rights to use means of individualization, which are belonged to the seller on the basis of a license shall pass to the buyer, unless an alternative provision is provided by the contract.
4. Rights, which are obtained on the basis of the special permission (license) to engage in relevant activities cannot be transferred to the buyer of the company, unless another is provided by legislative acts. Introduction into obligations, which are passed by the enterprise sale contract and the performance of which by the buyer is impossible in the absence of the special permission (license), shall not exempt the seller from the respective obligations to creditors. By default the buyer and the seller are jointly liable to the creditors.
5. Features of the sale of state enterprises, where the company acts as a single property complex, are determined by the legislation of the Republic of Kazakhstan on state property.
Footnote. Article 493 as amended by the Laws of the Republic of Kazakhstan dated 15.05.2007 No. 253; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 494. Form of the Enterprise Sale Contract
Footnote. The Title of Article 494 is in the wording of the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
1. The enterprise sale contract is concluded in written form by creating a single document signed by the parties, with the obligatory annex documents referred to in paragraph 2 of Article 495 of this Code.
2. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421 -IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
Article 495. Establishment of the Structure and Assessment of Enterprise Value that shall be Sold
1. The structure and value of a company that shall be sold, are determined by agreement of the parties involved , unless another means is provided by legislative acts.
2. The following should be drafted and considered by the parties prior to the signing of the contract: the inventory, balance sheet, auditor's report on the structure and value of the company of the audit firm, and a list of all debts (liabilities), included in the structure of the company, with an indication of the creditors, the nature, size and timing of their requirements.
Property, rights and obligations referred to in these documents shall be transferred by the seller to the buyer, unless another is followed from Article 493 of this Code and provided by the contract.
Footnote. Article 495 as amended by the Law of the Republic of Kazakhstan dated May 5, 2006, No. 139 (the order of enforcement see Article 2 of the Law of the Republic of Kazakhstan No. 139).
Article 496. Creditor’s Rights in the Sale of Enterprise
1. The party selling the company has an obligation to write to its creditors informing them of the selling of the company prior to its transfer to the buyer.
2. The creditor, who does not inform the seller in writing about his (her) consent to transfer the debt, may within three months from the date of receipt of the notification of the sale of the company, shall require either termination or early performance of obligation and compensation of damages by the seller, or the recognition of the company's sales contract invalid in whole or in part.
3. The creditor, who has not been notified on the sale of the company in accordance with paragraph 1 of this Article, may bring an action to satisfy the requirements of paragraph 2 of this Article, within a year from the day when he (she) knew or should have known about the transfer of the company by the seller to the buyer.
4. After the transfer of the company to the buyer, the seller and the buyer are jointly and severally liable for the debts of the company, which were transferred to the buyer without the consent of the creditor.
Article 497. Transfer of the Enterprise
1. Transfer of the enterprise to the buyer by the seller is carried out by the transfer act, which includes data on the structure of the enterprise and notification of creditors about the
sale of the enterprise, as well as information on the identified shortcomings of the transferred property and a list of property, on which transfer duties are not possible due to its loss.
2. Preparation of the enterprise to transfer, including the preparation and presentation to the signing of the transfer act, is the responsibility of the seller and shall be made at his (her) expense, unless another is provided by the contract.
3. The enterprise is considered to be transferred to the buyer from the date of signing of the transfer act by both parties
From that moment on the buyer enters the risk of accidental loss or accidental damage of the property which is transferred as part of the enterprise.
Article 498. Transfer of Rights to the Enterprise
Footnote. The title of Article 498 is in the wording of the Law of the Republic of Kazakhstan dated 25.03.2011 No 421-IV (shall be enforced upon expiry of ten calendar days after its official publication).
1. The right to property, which is part of the enterprise, subject to state registration shall pass to the buyer from the moment of registration. The right to the rest of the property is passed from the moment of signing the transfer act by both parties.
2. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421 -IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
3. In cases, where the contract provides for reservation of the seller’s ownership to the enterprise, which is passed to the buyer until payment or before the occurrence of other circumstances, and before the transferring of the rights to the buyer, the buyer has the right to dispose of property and ownership rights, included in the structure of the enterprise to the extent, which is necessary for the operation of the activity of the enterprise as a property complex.
Footnote. Article 498 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421 -IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 499. Consequences of the Transfer and Adoption of Enterprise with Disabilities
1. Consequences of the seller’s transfer and the buyer’s acceptance of the enterprise on the transfer act, which structure is not appropriate by the contract, including the quality of the transferred goods, shall be determined under the rules provided in Articles 413-415, 419, 422, 428 and 432 of this Code, unless another is not followed from the contract and provided by items 2-4 of this Article.
2. In cases, where the enterprise is transferred to and accepted by the transfer act, which provides information about the identified shortcomings of the enterprise and lost property (
paragraph 1 of Article 497 of this Code), the buyer shall be entitled to demand a reduction of the purchase price of the enterprise, if the right to bring other requirements in such cases is not provided by the contract.
3. The buyer shall be entitled to demand a reduction of the purchase price in the case of transferring the enterprise in the debts (liabilities) of the seller, which were not specified in the contract or the transfer act, unless the seller can prove that the buyer knew about debts ( liabilities) at the time of conclusion of the contract and the transfer of the enterprise.
4. The seller in the case of recipient of the buyer's notice on the shortcomings of the property, transferred within the enterprise, or the absence of certains of property, which should be transferred, shall immediately replace the property of inadequate quality or provide the buyer the missing property.
5. The buyer is entitled to demand in a judicial proceeding dissolution or change of the sale contract of the enterprise and return of what the parties executed by the contract, if it is established that the enterprise in view of defects for which the seller is responsible, is not suitable for the purpose mentioned in the contract of sale and these deficiencies are not eliminated by the seller on conditions, in the terms and order prescribed in accordance with this code, legislation or contract or remedial of these defects is impossible.
Article 500. Application to the Enterprise Sale Contract the Rules about the Consequences of the Invalidity of Legal Transactions and Dissolution and Change of the Contract
The rules of this Code on the consequences of the invalidity of legal transactions and on the dissolution and change of the sale contract, which is providing for refund or vindication in kind of received by the contract from one or both of the parties, shall apply to the contract of sale the enterprise, if such an effect did not significantly violate the rights and the interests of creditors, sellers and buyers, and others, which are protected by legislation and do not conflict with the public interest.
Chapter 26. Barter
Article 501. Barter Contract
1. On the barter contract, each party shall transfer into ownership of the other party economic management, operational control for one product in exchange to another.
2. To the barter agreement shall be applied the rules of the sale contract, whereas it is not against the rules of this chapter, and the essence of barter. In addition, each of the party recognized as the seller of goods, which he (she) shall be obliged to transfer and the buyer of goods, that he (she) shall be obliged to accept in exchange.
3. The provisions of this Chapter shall apply to the exchange of rights (works, services), unless another means is provided by legislative acts or followed from the nature of the corresponding obligations.
Article 502. Prices and Costs of a Barter Contract
1. Unless mentioned otherwise in the contract, the exchanged goods are assumed equivalent, and the costs of their transfer and acceptance are carried out in each case by the party that carries its obligations.
2. In cases, where, in accordance with the contract exchangeable goods are unequal, the party, who is obliged to transfer goods, whose price is lower than the price of the goods offered in exchange, must pay the difference in price immediately before or after the execution of his (her) obligation to transfer goods, unless another is provided by the contract.
Article 503. Performance of Mutual Obligations to Transfer Goods Under a Barter Agreement
In cases where, in accordance with the contract, the terms of transferring of exchanged goods are not identical, the performance of the obligation to transfer the goods by the party, who should transfer the goods after transferring the goods by the other party, shall be applied the rules on the performance of mutual obligations (Article 284 of this Code).
Article 504. Transfer of Ownership to the Exchanged Goods
Unless the legislation or the contract provides alternative provisions, the right to ownership of the exchanged goods shall pass to the parties who are acting on a barter agreement as buyers, at the same time after the party’s execution of obligations to transfer the goods.
Article 505. Responsibility for the Seizure of Goods Purchased Under the Barter Agreement
The party whose goods, purchased by barter are seized by the third party, may at the grounds specified in Article 414 of this Code, to require the other party return the goods received in the Exchange, and in the case of impossibility of obtaining goods in kind - its cost .
Chapter 27. Donation
Article 506. Donation Contract
1. Under the donation contract one party (the donator) donates transfers or undertakes to transfer to the other party (the recipient) an item of property or property right (claim) to him( her)self or to a third person, or releases or undertakes to release him (her) from the property liability before him (her) or to a third person.
In the presence of the counter transfer of the thing or the rights or counter-obligations, the contract is not recognized as a donation. To such contract shall apply the rules provided in paragraph 2 of Article 160 of this Code.
2. Promise to donate any item or property right or to release someone from the property liability (promise of donation) is recognized as a gift contract and binds a person if the promise made in the proper form (paragraph 2 of Article 508) and has clearly expressed intention to commit in the future, the donation of a thing or right to a specific person or release him (her) from the property liability.
Promise to give all his (her) property or part of them, without specifying a particular object of donation in the form of things and rights or an exemption from obligations is not valid.
3. Contract providing the transfer of the gift to the recipient after the death of the donor is not valid.
To this kind of donation shall be applied the rules of this Code on inheritance.
Article 507. Recipient’s Disclamation to Accept the Gift
1. The recipient shall have the right at any time before the transfer of the gift to him (her) refuse from it. In this case, the donation contract shall be terminated.
2. If a donation contract is concluded in writing, the refusal of the gift must be made in writing. In the case, where the contract of donation is registered, refusal to accept a gift also is subject to state registration.
3. If a donation contract is concluded in writing, the donor has the right to demand compensation from the recipient for actual damages caused by the refusal to accept the gift.
Footnote. Article 507 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 508. Form of a Donation Contract
1. Donation, accompanied by the transfer of the gift to the recipient, can be made orally, except in the cases provided by paragraphs 2 and 3 of this Article. Transfer of gift is performed by its presentation, symbolic transfer (handing keys etc.) or delivery of entitling documents.
2. Contract on donation of movable property must be concluded in writing in the following cases:
1) the recipient is a legal entity and the value of the gift is more than ten times the monthly calculation index, established by legislative acts;
2) the contract contains the promise of donation in the future. In the cases, provided in this paragraph, the donation contract, which is perfected in
speech, is not valid. 3. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (
shall be enforced upon expiry of ten calendar days after its first official publication).
Article 509. Prohibition of Donation
Donation is not allowed, except for the usual gifts whose cost does not exceed the ten times monthly calculation index, established by legislative acts:
1) on behalf of minors and citizens, who are recognized as non-capable, their legal representatives;
2) health care workers, workers of educational institutions, social protection and other similar institutions, citizens who are in them for treatment, maintenance or education, spouses and relatives of these individuals;
3) public servants and their family members in connection with the official position of public servants or in connection with the performance of their duties.
Footnote. Article 509 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 510. Limitations of Donation
1. The legal entity to whom a thing belongs on the right of economic management or operative control, shall have the right to present it with the consent of the owner, unless another is provided by legislation. This limitation does not apply to the usual gifts, whose cost does not exceed the ten monthly calculation index, established by legislative acts.
2. Donation of property, which is jointly owned, is allowed with the consent of all the participants of joint ownership in accordance with the rules provided in Article 220 of this Code.
3. Donation belonging to the donor of the claim to a third party shall be subject to the rules provided in Articles 339 - 343, 345 and 346 of this Code.
4. Donation through the execution of duties of the recipient before a third person shall be subject to the rules provided by paragraph 1 of Article 276 of this Code.
Donation through transferring by the donor the debt of recipient before the third party shall be subject to the rules provided in Article 348 of this Code.
5. The Power of Attorney for a representative of the donation, where the recipient is not named and not specified as the object for donation, is not valid.
Article 511. Repudiation to Execute the Donation Contract
1. The donor has the right to refuse to perform the contract, containing a promise to transfer to the recipient in the future property or ownership rights of a property or a promise to release the recipient from property liability, if after the conclusion of a contract, the property or family status or the donor’s health has changed so much that performance of the contract under the new conditions will significantly reduce his (her) life.
2. The donor has the right to refuse to perform the contract, containing a promise to transfer to the recipient property or ownership rights or a promise to release the recipient of property liability in the future, on the grounds that gives him (her) the right to cancel the donation (paragraph 1 of Article 512 of this Code).
3. The donor’s refusal to perform the donation contract on the grounds specified in items 1 and 2 of this article does not give the recipient the right to claim damages.
Article 512. Cancelling the Donation
1. Donor has the right to cancel the donation, if the recipient made an attempt on his (her) life, the life of any member of his (her) family or close relatives, or intentionally caused bodily harm to the donor.
In the case of intentional deprivation of the donor’s life by the recipient, the right to demand the abolition in the court belongs to the heirs of the donor.
2. The donor is entitled to request cancellation the gift by judicial procedure, if the recipient’s treatment of the gift, which represents to the donor a great non-property value, is threatening its irretrievable loss.
3. At the request of an interested person, the court may cancel the donation made by the individual entrepreneur or legal entity in violation of the provisions of the legislation on bankruptcy, at the expenses of enterprise activities, in the year before the announcement of such a person, who is declared bankrupt.
4. The contract of donation may be stipulated donator’s right to cancel the donation, if the recipient will outlive him (her).
5. In case of cancellation of a donation, the recipient must return the gift thing, if it still exists in nature at the time of cancellation of the donation.
Article 513. Cases in which a Refusal to Perform the Donation Contract and the Cancellation of Donation is Impossible
The rules on non-performance of the contract of donation (Article 511 of this Code), and the abolition of donation (Article 512 of this Code) shall not apply to gifts for which the value does not exceed ten monthly calculation index, established by legislative acts (paragraph 1 of Article 510 of this Code).
Article 514. Consequences of Injury Due to the Deficiencies of the Donated Things
Damage to life, health and property of the donated citizen, as a result of deficiencies of the donated things, shall be compensated by the donor in accordance with the rules provided by Chapter 47 of this Code, and if it is proved that these defects have arisen before the transfer of things to the recipient and are not in the range of obvious, the donor, even though he (she) knew about them, did not warn the recipient.
Article 515. Legal Succession in the Promise of Donation
1. The rights of a recipient, who promised a gift under the donation contract, shall not pass to his (her) heirs (the successors), unless another is provided by the contract of donation.
2. The duties of the donor, who promised a gift under the donation contract, shall pass to his (her) heirs (successors), unless another is provided by the contract of donation.
Article 516. Donations
1. Donation is the giving of property or rights for socially useful purposes. Donations can be made to citizens, therapeutic establishments, educational institutions,
social security institutions and other similar institutions; charitable, scientific and academic institutions; foundations, museums and other cultural institutions; public and religious associations; as well as the state and other actors of civil rights referred to in Articles 111 and 112 of this Code.
2. To adopt a donation does not required anyone's permission or consent. 3. Donation of property to a citizen should be, and to the legal entity may be due to the
use of the property by the donor for a specific purpose. In the absence of such conditions, donation of the property to a citizen is considered to be an ordinary donation, and in other cases the donated property shall be used by the recipient in accordance with the purpose of the property.
A legal entity that receives donations, which is set for a specific purpose, shall keep separate accounting of all transactions for the use of donated property.
4. If the use of the donated property in accordance with the specified purpose of the donor is impossible due to the changed circumstances, it can be used for other purposes only with the consent of the donor and, in the case of death of the citizen-donor or liquidation of a legal entity-donor - by court decision.
5. Use of donated property is not in accordance with the specified purpose of the donor or changing the assignment in violation of the rules provided by paragraph 4 of this Article, shall entitle the donor, his (her) heirs or other successor to demand the abolition of the donation.
6. Donations do not apply Article 512 and 515 of this Code.
Chapter 28. Rent and lifetime support of a maintenance Paragraph 1. General provisions
Article 517. Annuity Contract
1. Under an annuity contract, one party (the recipient of rent) transfers to another party ( payer of rent) to the ownership of a property, and a rent payer agrees in exchange for obtained property to pay periodically to the recipient the rent in the form of certain sum of money or the provision of funds for its maintenance in a different form.
2. Under an annuity contract is allowed to establish the obligation to pay rent in perpetuity (permanent rent) or for the recipient's lifetime rent (lifetime annuity). Lifetime annuities can be established under the conditions of life of the citizen with the dependent.
Article 518. The Form of Annuity Contract
Annuity contract is subject to notary certification Footnote. Article 518 as amended by the Law of the Republic of Kazakhstan dated
25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 519. Disposal Of Property For Rent Payment
1. The property, which is disposed for rent payment may be transferred by the payer of rent into the ownership of the recipient of rent with paying for a fee or for free.
2. In cases, where the annuity contract provides for the transfer of the property for a fee, to the relations of parties on transferring and payment shall be applied the rules of the sale contract (Chapter 25 of this Code), and in cases, where such property is transferred for free shall be applied the rules on the contract of donation (Chapter 27 of this Code), unless another is provided by the rules of this Chapter and is not contradict to the essence of the contract.
Article 520. Encumbrance Of Real Property By Rent
1. Rent encumbers the right to land, as well as enterprise, building, structure or other real property, which is transferred under its payment. In case of payer’s disposal to such property, his (her) obligations under the rent contract transferred to a recipient of property.
2. The person who sent the rent encumbered property, specified in paragraph 1 of this Article, into the ownership of another person, shall bear subsidiary liability (Article 357 of this Code) according to the requirements of recipient of the rents arising in connection with the violation of the annuity contract, unless the this Code, other legislation or a contract does not provide joint and several liability under this obligation.
Article 521. Ensuring The Payment Of Rent
1. When transferring the payment for rent, the rights to land or other real property, the rent recipient is responsible for ensuring that the rent payer accrues the right of lien on the property.
2. An essential condition of the contract, including the transfer of money for rent payment or other movable property, is a condition that establishes the rent payer’s obligation to provide security for the performance of these obligations (Article 292 of this Code) or insurance for the recipient of rent the risk of liability for non-performance or improper performance of these obligations.
3. Failure of rent payer to fulfill the obligations under paragraph 2 of this Article, as well as in case of loss or deterioration of the security software to circumstances for which the recipient does not respond, the rent recipient may terminate the annuity contract and demand compensation for damages caused by the termination of the contract.
Article 522. Responsibility For Late Payment Of Rent
For delay in the payment of rent the rent payer pays to the recipient the forfeit in the amount specified in Article 353 of this Code, unless a different amount of the forfeit is set by the contract.
Paragraph 2. Permanent rent
Article 523. Recipient Of A Permanent Rent
1. The recipients of permanent rent may only be citizens and non-profit organizations, if it meets the objectives of their activities.
2. Rights of the recipient of rent under the permanent rent contract may be transmitted to the persons referred to in paragraph 1 of this Article, by assignment of a claim and descend or legal succession in the reorganization of legal entities, unless another is provided by legislation or contract.
Article 524. The Form And Amount Of Permanent Rent
1. Permanent rent is paid in cash in the amount specified by the contract. 2. The contract may provide for payment of rent by providing things, works or services
corresponding to the value of the monetary amount of the rent. 3. Unless another is not stipulated in the contract, the amount of paid rent varies in
proportion to the monthly calculation index, established by legislative acts.
Article 525. Terms Of Payment Of Permanent Rent
Unless another is provided by contract, permanent rent is paid at the end of each calendar quarter.
Article 526. The Right Of The Payer To Purchase Permanent Rent
1. A permanent rent payer shall be entitled to refuse further payment of rent by its redemption.
2. Such a waiver shall be valid, in the case if it is declared in writing by the rent payer, not later than three months before the termination of the rent payment or for a longer period stipulated in the contract. In this case, the obligation to pay rent shall not stop until the full amount of the redemption shall not be received by the recipient of rent, unless a different procedure for redemption is provided by the contract.
3. A condition of the contract to refuse of the permanent rent payer from the right to its redemption is not valid.
The contract may provide that the right of redemption of permanent rent cannot be exercised during the lifetime of the recipient of rent or within a period not exceeding thirty years from the date of conclusion of the contract.
Article 527. Redemption Of Permanent Rent On Demand Of Rent Recipient
The recipient is entitled to demand the redemption of rent by the rent payer in cases where :
1) rent payer has delayed its payment for more than one year, unless another is provided by contract;
2) rent payer violated his (her) obligation to ensure the payment of the rent (Article 521 of this Code);
3) rent payer is declared insolvent or there are any other circumstances, which are clearly indicated that the rent will not be paid in the amount and terms established by the contract;
4) real property transferred under the payment of rent, are received by the common property or divided among several persons;
5) in other cases provided by the contract.
Article 528. Redemption Price Of Permanent Rent
1. Redemption of permanent rent, in the cases provided in Articles 526 and 527 of this Code, is made at a price established by the contract.
2. In the absence of the condition of the purchase price in the contract, under which the property is transferred for a fee for the rent payment, redemption is fulfilled at the price corresponding to the amount of annual rent payments.
3. In the absence of the conditions of the purchase price in the contract, under which the property transferred for free of charge for rent payment, in the redemption price, together with the annual rent amount is included the price of transferred property.
Article 529. The Risk Of Accidental Loss Or Accidental Damage Of The Property, Transferred For Payment Of Permanent Rent
1. The rent payer is obliged for the risk of accidental loss or accidental damage of the property, which is transferred free of charge for payment of permanent rent.
2. In the case of accidental loss or accidental damage of the property, which is transferred for a fee for permanent rent, the rent payer has the right to demand termination liabilities, respectively on payment of rent or change the conditions of its payments.
Paragraph 3. Life Annuity
Article 530. Recipients Of Life Annuity
1. Life annuity may be established for a period of life of the citizen, who is transferring the property for rent payment, or for the life period of another citizen, indicated by him (her).
2. Establishment of a life annuity in favor of several citizens is allowed, if their shares in the right to receive rent are equal, unless another is provided by the contract.
In the event of the death of one of the recipients of rent, his (her) share in the right to receive rent goes to the recipients, who has outlived him (her), unless another is provided by the contract, and in the event of the death of the last recipient of the rent the obligation to pay rent shall be terminated.
3. The contract, establishing a life annuity for the citizen, who had died by the time of conclusion of the contract, is not valid.
Article 531. Amount Of Life Annuity
1. Life annuity is defined in the contract as the amount of money paid to the recipient of rent periodically throughout his (her) life. In cases, where the parties conclude a contract of life maintenance with dependent, in the contract must be determined the monetary value of such support.
2. Unless another is provided by the contract of a life annuity, the amount of payable rent per month should not be less than the minimum wage established by the legislative acts.
Article 532. Periods Of Payment Of Life Annuity
Unless another is provided by the contract, life annuity is payable at the end of each calendar month.
Article 533. Termination Of The Contract Of Life Annuity At The Request Of The Recipient Of Rent
1. In the event of a essential breach of the contract by the payer of rent, the rent recipient has the right to demand the redemption of rent from the payer of rent under the conditions provided in Article 528 of this Code, or the termination of the contract.
2. If for a payment of life annuity is disposed free an apartment, a house or other property, the recipient of the rent is entitled to demand the return of the property with the deduction of its cost in the expense of purchase price of rent, in the case of material breach of the contract by a payer of rent.
Article 534. The Risk Of Accidental Loss Of The Property, Transferred For The Rent Payment
Accidental loss or accidental damage of the property, which is transferred for payment of a life annuity, cannot relieve the payer of rent from the obligation to pay rent under the conditions provided in the contract.
Paragraph 4. Lifelong Maintenance of a Dependent
Article 535. Contract Of Life Annuity With Dependence
1. Under a contract of life annuity with dependence, the recipient of the rent-a citizen passes the real property belonging to him (her) in property of rent payer, who undertakes to carry out a life annuity with a dependant of the citizen, and (or) a third party, specified by him (her).
2. By contract of life annuity with a dependent shall be applied the rules of the life annuity , unless another is provided by the rules of this paragraph.
Article 536. The Obligation To Provide The Maintenance With A Dependent
1. The obligation of a rent payer to provide maintenance with a dependent may include ensuring the needs for housing, food and clothing, care and assistance.
The contract may also provide the rent payer’s payment for funeral services. 2. The contract shall determine the total cost of maintenance of a dependent. The total
amount of maintenance per month cannot be less than two minimum wages established by the legislative acts.
3. At the resolution of the dispute between the parties on the amount of maintenance that is provided or should be provided to the citizen, the Court must be guided by the principles of fairness and reasonableness.
Article 537. Replacing The Life Annuity To Periodical Payments
The contract may provide the possibility to replace the provision of maintenance of a dependent in kind by the periodical payments in cash.
Article 538. Alienation And Use Of Property, Transferred To Ensure Permanent Alimony
1. Rent payer shall be entitled to dispose, lease mortgage or otherwise encumber real property, which is transferred to him (her) for ensuring a lifetime support, and only with the prior consent of the recipient to rent.
2. Rent payer is obliged to take the necessary measures to ensure that, while providing permanent alimony with dependent the use of property does not lead to a decrease in the value of that property in excess of the value of its natural wear.
Article 539. Termination Of Permanent Alimony With Dependent
1. The obligations of permanent alimony with dependent shall be terminated with the death of the recipient of rent.
2. With a material breach of his (her) obligations by the rent payer, the rent recipient shall have the right to demand the return of real property transferred for ensuring permanent alimony or paying him (her) the purchase price under the conditions established in Article 528 of this Code. In this case, the payer of the rent shall not have the right to demand compensation for expenses, which are incurred in connection with the maintenance of the rent recipient.
Chapter 29. Property lease (rent) Paragraph 1. General provisions
Article 540. Contract For Lease Of Property
1. Under the contract of property lease the landlord shall be obliged to provide the tenant for payment a property for temporary possession and use.
2. In the cases and procedure established by this Code, the hirer has the right to dispose of the rented property.
3. To contracts of property lease also include leasing, hire, and others of contracts related to the transfer of the property for a payment for temporary use.
Article 541. Objects Of Property Lease
1. In the property lease can be transferred the companies and other property complexes, land, buildings, constructions, equipment, vehicles and other things that do not lose their natural properties in the course of their use (inconsumable things).
2. The object of property lease may also be the land use right, the subsoil use right or other proprietary rights, unless another is provided by legislation.
3. The legislative acts can establish thees of property, the delivery of which to the property of lease is prohibited or limited.
4. The legislative acts can establish the peculiarities of deposit for property lease of residential premises, land plots, subsoil and other separate natural objects, also including on the basis of concession agreements, as well as in other cases.
5. Features of rent of State property in the lease property are established by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 541 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 542. Terms And Conditions Of Lease Contract
In the property lease contract must be specified the data, to set the property, which shall be transferred to the hirer as an object of property lease.
In the absence of these data in the contract, the condition about the object, which shall be transferred to the property lease, is considered to be non-consensual by the parties, and the respective contract is not concluded.
Article 543. The Lender
Right to surrender the property for rent belongs to the owner. The lender may also be the persons authorized by legislative acts or the owner to lease the
property for rent.
Article 544. The Form Of Property Lease Contract
1. The lease contract for a period exceeding one year, and if at least one of the parties of the contract is a legal entity regardless of the length, must be concluded in writing.
2. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
3. The lease contract between the citizens for up to one year may be concluded orally. 4. The lease contract, which is providing the subsequent transfer of ownership right for
the property to the tenant, shall be concluded in the form of the sale contract to such property.
Footnote. Article 544 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011-IV No. 421 (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 545. Term Of The Property Lease Contract
1. Property lease contract shall be concluded for a period specified by the contract. 2. If the property lease contract entered into without a deadline, it is concluded for an
indefinite period. Each party shall be entitled to cancel the agreement at any time by notifying the other
party before three months-in the hiring of real property and for one month in the hiring of another property, if the legislative acts or the contract provides otherwise.
3. The legislative acts can establish the maximum (limit) contract term for certains of tenancy, as well as for the recruitment of certains of property. In these cases, if the term of contract is uncertain and none of the parties cancel the contract before the expiry of the deadline set by legislative acts, the contact shall be terminated after the deadline.
In this case, the property lease contract, which is exceeding the limit specified by legislative acts, shall be concluded for a period equal to the maximum (limit).
Article 546. Payment Under The Property Lease Contract
1. Fees for the use of rented property shall be paid by the hirer in accordance with the terms and in the form established by the contract, unless another is provided by legislative acts. In cases, where they are not defined by the contract, it is believed that the established procedure, terms and format, are usually used in hiring a similar property under comparable circumstances.
2. Payment is established for all rented property as a whole or separately for each of its parts in the form of:
1) defined as a fixed amount of payments, which is made periodically or at a time; 2) fixed percentage, obtained from the use of rented property, products, fruits or revenues; 3) provision of certain services by the hirer; 4) transfer by the hirer to the landlord a contractual thing in the ownership or lease; 5) assignment on the hirer costs to improve the rented property by the contract. Parties may include in the contract a combination of these forms of payment for the use of
the property or other forms of payment. 3. The payment for use of the property can be changed only once a year, unless another is
provided by agreement of the parties. The legislative acts may provide other minimum terms to review the amount of payment for certains of property lease, as well as for hiring of certains of property.
4. Amount of payment can be revised at the request of one of the parties in the cases of changes in prices and tariffs, which are set centrally.
5. The hirer has the right to demand a corresponding reduction of fees, if due to circumstances for which he (she) is not responsible, the conditions of use specified in the contract cannot be satisfied, or the condition of the property have deteriorated significantly, and if legislative acts provides otherwise.
6. Unless another is provided by the contract, in the event of a material breach the terms of payment for the use of the property by the hirer, the landlord shall be entitled to demand from him (her) an early payment within the prescribed period of the landlord. In this case, the landlord shall not have the right to demand advance payment for more than two consecutive terms.
Article 547. Provision Of Property To The Hirer
1. The landlord must give to the hirer the property in a condition corresponding to the contract and the purpose of the property.
2. The property is rented together with all its accessories and related documents (the documents certifying the completeness, safety, quality of assets, operating procedure, etc.), unless alternative conditions are provided by the contract.
If such accessories and documents were not transferred, and without them, the hirer cannot use the property in accordance with its purpose or substantially deprived of what, he ( she) was entitled to expect under the contract, he (she) may demand the landlord to provide him (her) of such accessories and documents or terminate the contract.
3. If the landlord has not provided the hirer with lease property in the term indicated in the contract, and if the contract does not specify such period, within a reasonable time, the hirer has the right to demand from him (her) the property under Article 355 of this Code or termination of the contract.
Article 548. Landlord Liability For Defects Handed Over For Rent Property
1. Landlord is liable for the defects of rented property, which are fully or partially prevent the usage of the property, even if at the time of conclusion of the contract, he (she) was not aware about these deficiencies.
Upon detection of such defects, the hirer has the right on his (her) option to require from the landlord:
1) address to eliminate the deficiencies of the property without compensation; 2) decrease in proportion the hired fee;
3) withhold the sum of expenses incurred to resolve these defects from the property charges for usage, after notifying the landlord;
4) early termination of the contract.
2. The landlord, who is informed about the requirements of the hirer or his (her) intention to address the shortcomings of the property at the expense of the landlord, can immediately replace with the consent of the hirer the provided lease property to other similar property in good condition or eliminate the deficiencies of the property free of charge.
3. If compliance with the requirements of the hirer or withholding by him (her) the costs to eliminate deficiencies from the payment for the usage of the property shall not cover the damages caused to the hirer, he (she) has the right to demand compensation for uncovered part of losses.
4. Landlord is not responsible for the deficiencies of the surrendered lease property, which had agreed at the conclusion of the contract or were previously known to the hirer.
Article 549. Rights Of Third Parties On The Rental Property
1. Transfer of the property for rent is not grounds for termination or change of any third party rights to this property.
2. At the conclusion of the contract the landlord is obliged to notify the hirer about all rights of third parties to the rental property (servitude, the right mortgage etc.).
Failure to follow this rule gives the hirer the right to claim reduction in payment for use of the property or the termination of the contract.
Article 550. Use Of Rented Property
The hirer is obliged to use the property in accordance with the terms of the contract, and if such conditions are not defined in the contract, in accordance with the purpose of the property .
Article 551. Limits Of Instructions Of The Hirer By The Rented Property
1. The hirer may, with the consent of the landlord to take the rented property to sublet ( sublease), transfer his (her) rights and obligations under the contract of property lease to another person (transfer of lease), provide the rented property for free usage, and to give these rights to pledge and contribute them as a contribution to the registered capital of enterprise partnerships, joint-stock companies or contribution in the industrial cooperative, unless another is provided by legislative acts. In these cases, except sublease, responsibility under the contract before the landlord remains the hirer.
2. Contract on the transfer of property to other persons cannot be concluded for a period exceeding the period of the contract of rent.
3. The rules of the property lease contract shall be applied to the sublease contract, unless another is provided by legislative acts.
Article 552. Duties Of The Landlord On The Maintenance Of The Surrendered Lease Property
1. The landlord is responsible for conducting, at his (her) own expense, capital repairs of the rented property in the terms agreed by the parties, unless an alternative provisions are provided by legislation or contract.
2. Landlord is obliged to provide repairs, at his (her) own expense, caused by the urgent need, that is arising due to circumstances for which the hirer does not respond, within a reasonable time, unless another is provided by legislation or contract.
3. The landlord’s failure to perform duties on capital repairs shall give the hirer the right to choose:
1) to repair him(her)self and recover from the landlord cost of repair; 2) set off the repair cost in payments under the contract; 3) require a corresponding reduction in payment under the contract; 4) to cancel the contract.
Article 553. Duties Of The Hirer On The Maintenance Of The Rented Property
The hirer is obliged to maintain the property in good condition and make at his (her) own expense repairs and bear the expenses of the property, unless another is provided by law or contract.
Article 554. Property Right Of The Hirer To Products, Fruits And Other Incomes From The Rented Property
Products, fruits and other incomes received by the hirer from the use of rented property shall be his (her) property, unless another is provided by legislative acts or contract.
Article 555. Improvements Of The Property
1. Separable improvements of the rented property made by the hirer, shall be his (her) property, unless otherwise specified by contract.
2. In the case, where the hirer has made at his (her) own expense and with the consent of the landlord, inseparable improvements without harm to the rented property, he (she) shall be entitled, after the termination of the contract to compensate the cost of these improvements, unless another is provided by the contract.
3. The cost of inseparable improvements made by the hirer without the consent of the landlord shall be non- refundable, unless another is provided by legislative acts or contract.
Article 556. Amendment And Termination Of The Property Lease Contract On Demand Of One Of The Parties
1. At the request of one of the parties the lease contract may be amended or terminated prematurely by the courts in the cases provided by this Code and other legislative acts or the contract.
2. At the request of the landlord the lease contract can be terminated and the property returned to the landlord in the following cases:
1) if the hirer uses the property with a material breach of contract or purpose of property, despite a written warning of the landlord on termination such actions;
2) if the hirer intentionally or recklessly damages the property significantly; 3) if the hirer fails to make the contractual payment for the use of the property more than
twice; 4) if the hirer does not make the capital repairs of the property under the terms,
established by the contract or in the absence of them in the contract-within a reasonable period of time in cases, where in accordance with legislative acts, or according to the contract the obligation of capital repairs rests on the hirer.
The landlord has the right to demand early termination of the contract only after giving the hirer a possibility for the execution of his (her) obligation within a reasonable period of time.
3. The contract can be dissolved ahead of time at the request of the hirer in the following cases:
1) the landlord does not provide a property for use to the hirer or creates obstacles in the use of property, in accordance with the terms of the contract or the purpose of the property;
2) the landlord does not perform his (her) responsibilities on making capital repairs of the property within the established terms of the contract, and in the absence of them in the contract - within a reasonable period of time;
3) the property, transferred to the hirer has deficiencies, which are preventing its use, and were not specified by the landlord in the contract and were not previously known to the hirer and could not be found during inspection of the property, or on check the health on the conclusion of the contract;
4) if the property due to circumstances, for which the hirer is not responsible, shall be in such a poor condition that it is unsuitable for use.
Article 557. The Priority Right Of The Hirer For Conclusion Of A Contract For The New Term
1. The hirer, who is properly performed his (her) duties has, unless another is provided by legislative acts or contract, after the expiration of the contract and upon all other things being
equal, priority right over other persons to conclude a lease contract for a further term. The hirer is obliged to notify the landlord about a desire to conclude such a contract within the period specified in the rent contract, unless such period is not specified in the contract, within a reasonable time prior to the expiration of the contract.
2. At the conclusion of the lease contract for a new term, the contract terms and conditions may be amended by agreement of the parties.
3. If the landlord refuses the hirer’s request to conclude a contract for a new term, but within a year from the date of expiry of the contract concludes a lease contract with another person, the hirer may at his (her) own option to require in the Court to transfer rights and obligations under the concluded contract and compensation for damages caused by the refusal to renew the contract, or only compensation for damages.
Article 558. Renewal Of The Property Lease Contract
If the hirer is continuing to use the property after the expiration of the contract and in the absence of any objection by the landlord, the contract shall be renewed under the same conditions for an indefinite period of time. In addition, each party shall have the right at any time to withdraw from the contract, by notifying in writing the other party with not less than three months’ notice - in the hiring of real property and for a month - in the hiring of another property, unless the legislative acts or the contract provides another.
Article 559. Preservation Of The Property Lease Contract In Force When The Parties Change
1. The transfer of the property right, the right of economic management or operative control for a rented property to another person shall not be grounds for amendment or termination of the property lease contract.
2. In the event of the death of a citizen, who is a hirer of the real property, his (her) rights and obligations under a contract of lease property shall pass to the heir, if the legislation or the contract provides another.
Landlord is not entitled to refuse such an heir in joining to the contract for the remaining term, except the cases, when the contract was due to the personal qualities of the hirer.
Article 560. Dependence Of The Sublease Contract From The Main Lease Contract
1. Unless otherwise specified by the lease contract, the early termination of the lease contract shall result in the termination of the sublease contract, which is concluded in accordance with the lease contract.
2. If the lease contract shall be found to be invalid as found on these grounds, then the sublease contract shall be invalid too.
Article 561. Return Of The Property To The Landlord In The Termination Of The Contract
1. After the termination of the lease contract, the hirer shall be obliged to return the landlord's property in the same condition in which it was received, subject to normal wear and tear or in the condition of the contract.
2. If the condition of the return property at the termination of the contract does not comply with the conditions specified in paragraph 1 of this Article, the hirer shall compensate the landlord for damages. If the property rented for lease, leaves of early period of service, provided in the contract, the hirer shall compensate to the landlord the residual value of the property, unless otherwise provided by the contract.
3. If the hirer does not return the rented property or returns it late, the landlord is entitled to demand payment for the use of the property for all the time of delay. In the case, where the indicated payment does not cover losses caused to the landlord, he (she) may demand compensation for them.
4. In case, where for late return of the rented property, the contract provides a forfeit, damages may be recovered wholly over the forfeit, unless another is provided by the contract.
Article 562. Transition Of The Property To The Ownership Of The Hirer
1. If it can be established in the rent contract that the rented property shall become the property of the hirer under conditions determined by the agreement of parties.
2. If the condition of redemption of the rented property is not declared in the contract, it can be established by additional agreement of the parties, who in this case shall have the right to agree on the offset of previously paid fees for the use of property in the purchase price.
3. The legislative acts may establish the cases where the redemption of rented property prohibited.
Article 563. Protection The Rights Of The Hirer
Hirers are ensured the protection of their rights on the rented property equally with the rights of landlords.
The landlord is not liable before the hirer for breach of use from the violent actions of third parties who do not have any rights to the rented property.
The hirer has the right to sue or otherwise protect his (her) rights on his (her) behalf.
Article 564. Characteristics Of Certains Of Lease Property And Hiring Of Certain Property
For certains of contract for property lease and contracts for hiring of certains of property ( leasing, leasing companies, leasing buildings, rental vehicles, rent) shall apply the provisions of this paragraph, unless another is provided by the laws and rules of this Code on them.
Footnote. Article 564 as amended by the Law of the Republic of Kazakhstan dated July 5, 2000 No. 75-II.
Paragraph 2. Leasing
Article 565. Lease Agreement
1. Under the lease agreement the lessor undertakes to purchase and own a property specified by the lessee from the seller and give the lessee the property for temporary possession and use for business purposes for a fee.
2. The leasing agreement may provide that the option of the seller and the purchased property shall be sold by the lessor.
3. Legislative acts of the Republic of Kazakhstan can specify the peculiarities of certains of lease agreement.
Footnote. Article 565 as amended by the Law of the Republic of Kazakhstan dated March 10, 2004 No. 532.
Article 566. Leasing Subject
The leasing subject can be leased buildings, structures, machinery, equipment, inventory, vehicles, land plots and any other non-consumable items.
Leased assets may not be securities and natural resources.
Article 567. Essential Terms Of The Lease Agreement
In addition to the conditions of the lease agreement referred to in Article 542 of this Code, the lease agreement shall contain the following conditions:
1) the name of the seller of the property; 2) the conditions and duration of the transfer of property to the lessee; 3) the amount and timing of payments; 4) the term of agreement;
5) the conditions for the transition of property to the ownership of lessee, if such a transition is provided by the contract.
Article 568. Notification Of The Seller On Leasing The Property
The lessor, purchasing the property to rent out to the lessee shall notify the seller that the property is to be leased to a certain person.
Article 569. The Risk Of Accidental Loss Or Damage Of The Property
The risk of accidental loss of or damage to the property, which is the object of leasing, shall be transferred to the lessee at the time of the transfer of the property, unless the contract stipulates otherwise..
Article 570. Payments Under The Lease Agreement
Periodic payments, which shall be paid in accordance with the lease agreement can be calculated, taking into account the amortization of the whole or a substantial part of the value of the property at the price at the time of conclusion of the contract.
Article 571. Transfer To The Lessee The Subject Of Lease Agreement
1. The property, which is the subject of the lease agreement, shall be transferred to the lessee by the seller directly at the location of the latter, unless another is provided by the contract or followed from the nature of the obligation.
2. In the case, where the property, which is the subject of the lease agreement, are not transferred to the lessee in the contract term, the lessee shall have the right, if the delay is enabled by the circumstances for which the lessor is responsible, to demand cancellation of the contract and compensation of damages.
Article 572. Seller’s Liability
1. The lessee shall have the right to present directly to the seller of the property, which is the subject of the lease agreement, claims arising from a contract of sale concluded between the seller and lessor, in particular, the quality and completeness of the property, the duration of its delivery and in other cases of improper performance of the contract by the seller. In this case, the lessee shall have the rights and duties for the buyer under this Code, except the obligations to pay for purchased property, as if he (she) were a party of the sale of property.
In the relationship with the seller, the lessee and the lessor act as joint creditors. 2. Unless otherwise stipulated by the lease agreement, the lessor shall not be liable before
the lessee for the performance of the seller the claims arising from the contract of sale, unless the lessor is entitled to choose the seller. In the latter case, the lessee has the right to choose to make claims arising from the contract of sale, both directly to the seller of property and to the lessor, who are jointly liable.
Paragraph 3. Rental for the enterprise
Article 573. Enterprise Rental Agreement
1. Under the lease, the lessor shall give the tenant a fee for doing business in the temporary possession and use of enterprise as a whole as a property complex (Article 119 of the Code), including the right to a enterprise name and (or) the commercial designation of the right holder, to secure business information, as well as other facilities provided by the contract of exclusive rights, trademark, service mark, etc. (a set of exclusive rights), except for those rights and obligations, which the lessor is not entitled to transfer to others.
2. The right of the lessor, which he (she) received under a license to engage in the relevant activities cannot be transferred to the tenant, unless another is provided by legislative acts. Inclusion in the enterprise the obligations which are granted under the contract, and the performance of which by the tenant is impossible if he (she) has no such special permission ( license) shall not relieve the lessor from the respective obligations to creditors.
3. The rights and obligations in relation to employees of the enterprise shall transfer from the lessor to the tenant in the manner prescribed by the labor legislation of the Republic of Kazakhstan.
Footnote. Article 573 as amended by the Law of the Republic of Kazakhstan dated May 15, 2007 No. 253.
Article 574. Creditor's Rights In Renting Enterprise
1. On transferring of debts to the tenant, the landlord must give written notice to the creditors until the conclusion of the lease contract, who in the case of disagreeing to such a transfer, may within three months from the date of receipt of the notice demand from the landlord to require a termination or early performance of the obligations and compensation for damages. If within the specified period of time, any of these requirements is not filed, the creditor is recognized to have consented to the transfer of the debt to the tenant.
2. The enterprise can be transferred to the tenant only after payments to creditors, who demanded from the landlord the termination or early performance of obligations.
3. After the transfer of the enterprise as a property complex to rent, a landlord and a tenant shall be jointly liable for the included in the transferred enterprise debts, which were transferred to the tenant, without the consent of the creditor.
Article 575. The Form Of The Enterprise Rental Agreement
Footnote. Title of Article 575 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
1. Enterprise rental agreement shall be in writing by drafting a single document signed by the parties.
2. Failure to comply with the form of the lease enterprise shall invalidate the contract.
3. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011-IV No. 421 ( shall be enforced upon expiry of ten calendar days after its first official publication).
Article 576. Transfer Of A Leased Enterprise
Transfer of the enterprise to the tenant is carried out by the transfer act. Preparation of the enterprise to the transfer, including the drafting and submission to the signing of the transfer act, shall be the responsibility of the landlord and at his (her) expense, unless another is provided by the contract.
Article 577. Tenant's Obligation On The Maintenance Of Enterprise And Payments For The Costs Of Operation
1. The tenant is obliged, within the period of term of the contract, to maintain the enterprise in good technical condition, including its current and capital repairs, unless another is provided by the contract.
2. To the tenant shall be the expenses associated with the operation of a leased enterprise, unless another is provided by the contract.
Article 578. Use Of The Property Of Leased Enterprise
The tenant shall be entitled, without the lessor’s content to sell, exchange, grant for temporary use or borrow material values, which are the part of the property of leased enterprise, and bring them to a sublease and transfer his (her) rights and obligations under the lease agreement in respect of such property to another person, which is provided that this shall not reduce the value of the enterprise and shall not affect the other provisions of the lease, unless another is provided by legislative acts or agreement.
Article 579. Entering By The Tenant Changes And Improvements To The Leased Enterprise
1. Tenant shall be entitled, without the lessor’s consent to change the composition of the leased property complex, to conduct its reconstruction, expansion, modernization, increasing its cost, unless another is provided by the enterprise rental agreement.
2. Tenant of the enterprise has the right to compensation for the costs of inseparable improvements of the leased property to him (her), without the permissions of the landlord to such improvements, unless another is provided by the enterprise rental agreement.
3. The landlord may be released by a court from the obligation to compensate to the tenant the costs of permanent improvements of the leased property, if he (she) shall prove that
the costs of the tenant to these improvements increase the cost of the leased property, disproportionate to the improvement of its operating properties, or in the exercise of such improvements have been violated the principles of good faith and reasonableness.
Article 580. Return Of A Leased Enterprise
Upon the termination of the lease enterprise agreement on the whole as a property complex should be returned to the lessor in accordance with the rules provided for in Articles 573, 574, and 576 of this Code. Preparation of the enterprise to transfer to the lessor, including the drafting and submission to the signing of the transfer act, in this case is the responsibility of the tenant and at his (her) expense, unless another is provided by the contract .
Paragraph 4. Rental of buildings and structures
Article 581. Contract For Leasing A Building Or Structure
1.On the contract for leasing a building or structure, the lessor shall be obliged to transfer for the temporary possession and use of the tenant building or construction.
2. The rules of this paragraph shall apply to leasing companies, unless another is provided by the rules of this Code on the rental of enterprise.
Article 582. Form Of The Contract For Leasing A Building Or Structure
Footnote. Title of Article 582 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
1. Contract for leasing a building or structure shall be in writing by drafting a single document signed by the parties.
2. Failure to comply with the form of the contract for leasing a building or structure shall entail its invalidity.
3. Is excluded by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV ( shall be enforced upon expiry of ten calendar days after its first official publication).
Article 583. Rental Value
1. Contract for leasing a building or structure must include rental value. In the absence of agreed by the parties in writing the terms of rental value, the contract for leasing a building or structure is not concluded. The rules for determining the price as provided in paragraph 3 of Article 385 of this Code shall not apply.
2. In cases, where the rent for a building or structure established in the contract for a unit area of the building (structure), or other indicator of its size, the rent is determined based on the actual size transferred to the tenant of the building or structure.
Article 584. Transfer Of A Building Or Structure
1. Transfer of a building or structure by the lessor and the tenant’s acceptance of it shall be on the transfer act or other document for transfer, signed by the parties.
2. Failure of one of the parties from signing the document on the transfer of a building or structure on the terms provided by the contract, shall be considered as a withdrawal of the lessor from the obligation to the transfer the property and the tenant’s refusal from taking the property.
3. Upon the termination of the contract for leasing a building or structure the leased building or construction shall be returned to the lessor in accordance with the rules provided in items 1 and 2 of this Article.
Paragraph 5. Rental for Vehicles
Article 585. Rental Agreement For A Vehicle With A Cabin Crew
1. Under the lease (charter at the time) of the vehicle with the provision of management services and technical maintenance (a lease vehicle with a crew), the landlord shall provide the tenant with the vehicle for payment for temporary possession and use, and by his (her) own force provide management services of it and its technical operation.
2. The rules of this chapter on the preferential right of the tenant for conclusion of a lease agreement for a new term and the resumption of the lease agreement for an indefinite period ( Articles 557 and 558 of this Code) shall not apply to a rental agreement for vehicle with a crew.
Footnote. Article 585 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 586. Form Of The Rental Agreement For Vehicle With A Cabin Crew
Rental agreement for vehicle with a cabin crew must be in written form, regardless of its duration.
Article 587. Landlord's Obligation to Maintain Vehicle
Landlord for duration of the contract is obliged to maintain the proper condition of the leased vehicle, including the implementation of current and capital repairs and provision of the necessary supplies.
Article 588. Landlord's Obligation For Management And Technical Service Of Vehicle
1. The scope of management services and technical operation of a vehicle provided to the tenant by the landlord shall ensure its normal and safe operation in accordance with the purposes of rent specified in the contract. A rental agreement for a vehicle with a cabin crew may provide a wider range of services provided to the tenant.
2. The crew of the vehicle and its qualifications should meet the obligatory terms and conditions of the contract as specified by the parties, if the rules binding on the parties such requirements have not been established, - the requirements of the usual practice of the vehicle of this and conditions of the contract.
3. Crew members maintain an employment relationship with the landlord. They obey the orders of the landlord, relating to the management and technical operation, and the orders of the tenant, relating to the commercial operation of the vehicle.
4. If the lease agreement does not provide otherwise, the cost of the salaries of the crew members, and the cost of their maintaining shall be provided by the lessor.
Article 589. Duty Of The Tenant To Pay The Expenses, Relating To The Commercial Exploitation Of Vehicle
Unless another is provided by the rental agreement for a vehicle with a cabin crew, the tenant shall pay for the fuel and other consumable materials in service, payment of fees and other expenses incurred in connection with the commercial use of the vehicle.
Article 590. Insurance Of Vehicle
Unless another is provided by the rental agreement for vehicle with a cabin crew, the duty to insure the vehicle and/or insure the liability for any damages that may be caused by or in connection with its operation shall rest to the landlord, in cases where such insurance is compulsory.
Article 591. Contracts With Third Parties On The Use Of Vehicle
A tenant engaged in the commercial exploitation of the leased vehicle may, without the consent of the landlord, on his (her) own name to enter into contracts of carriage and other
contracts with the third parties, if they do not conflict with the purposes of usage of the vehicle specified in the rental agreement, and if such purposes are not established, for the purpose of the vehicle.
Article 592. Responsibility For The Damage Caused To The Vehicle
In the case of loss or damage to the rented vehicle, the tenant shall compensate to the landlord damages, if the latter proves that the loss or damage of the vehicle took place in circumstances for which the tenant is responsible in accordance with legislative acts, or contract.
Article 593. Responsibility For The Damage Caused By The Vehicle
Liability for damage caused to third persons by the leased vehicle, its mechanisms, devices, equipment, etc. shall bear the tenant in accordance with the rules of Article 931 of this Code.
Article 594. Features Of The Lease Of Certains Of Vehicles
Features of the lease of certains of vehicles with the provision of management services and technical operation, other than those provided by this paragraph, may be established by legislative acts.
Footnote. Article 594 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-1. Rental Agreement For Vehicle Without A Cabin Crew
1. Under the rental agreement for vehicle without a cabin crew, the landlord provides to the tenant the vehicle for payment for temporary possession and use without management services and its technical operation.
2. Rules concerning renewal of lease agreement for an indefinite period and the preferential right of the tenant at the conclusion of a lease agreement for a new term (Articles 557 and 558 of this Code) shall not apply to the rental agreement for vehicle without the crew .
Footnote. The Code is supplemented with Article 594-1 in accordance with the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-2. Form Of The Rental Agreement For Vehicle Without A Cabin Crew
Rental agreement for vehicle without a cabin crew must be in written form, regardless of its duration.
Footnote. The Code is supplemented with Article 594-2 in accordance with the Law dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-3. Tenant’s Obligation To Maintain A Vehicle
Unless otherwise stipulated by the rental agreement for a vehicle without a cabin crew, the tenant for the duration of the contract is obliged to maintain the proper condition of the leased vehicle, including the implementation of current and capital repairs.
Footnote. The Code is supplemented with Article 594-3 in accordance with the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-4. Duty Of Tenant To Pay The Expenses For The Maintenance Of The Vehicle
Unless another is provided by the rental agreement for vehicle without a cabin crew, the tenant shall bear the expenses for maintenance of the rented vehicle, its insurance, including their responsibilities, as well as the expenses incurred in connection with its operation.
Footnote. The Code is supplemented with Article 594-4 in accordance with the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-5. Contract With Third Parties On The Use Of Vehicle
If the rental agreement for a vehicle without a cabin crew provides otherwise, the tenant may, without the consent of the landlord to take the rented vehicle in the sublease under the rental agreement for vehicle with or without a cabin crew.
Footnote. The Code is supplemented by Article 594-5 in accordance with the Law of the Republic of Kazakhstan dated 25.03.2011-IV No. 421 (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-6. Responsibility For The Damage Caused By The Vehicle
Liability for damage caused to third persons by vehicle, its mechanisms, devices, equipment, shall be the tenant in accordance with the rules of Article 931 of this Code.
Footnote. The Code is supplemented with Article 594-6 in accordance with the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 594-7. Features Of The Lease Of Certains Of Vehicles
Features of the lease of certains of vehicles without the provision of management services and its technical operation can be provided by other legislation.
Footnote. The Code is supplemented with Article 594-7 in accordance with the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Paragraph 6. Hire
Article 595. Contract Of Hire
1. Under the hiring contract the landlord, who is leasing the movable property to let in as a permanent business activity, shall be obliged to provide to the tenant the property for payment for temporary possession and use.
Property, which is provided under the contract of hire, shall be used for consumer purposes, unless otherwise stipulated by the contract or followed from the nature of the obligation.
2. Contract of hire shall be in writing. 3. Contract of hire is a public (Article 387 of this Code).
Article 596. Term Of Hire Contract
1. Contract of hire is for a term of one year. 2. The rules on the priority rights of the tenant to renew the contract of tenancy and the
renewal of the contract of tenancy for an indefinite period of time (Articles 557 and 558 of this Code) shall not be applied to the contract of hire.
3. The tenant shall have the right to refuse from the hire contract at any time, unless another is provided by the contract.
Article 597. Provision Of The Property To The Tenant
A landlord, who is concluding the hire contract, is obliged in the presence of the tenant to check the condition of the rented property and familiarize the tenant with the rules of operation of the property or to give him (her) written instructions for use of the property.
Article 598. Remedial Action Of Surrendered For Hire Property
When a tenant finds defects on the leasing property, which are wholly or partially prevent its use, the landlord shall within ten days from the date of the tenant's statement on the deficiencies, unless a shorter period is established by contract, free address the defects of the
property on the spot or replace such property to other similar property, which are in good condition.
If the deficiencies of leasing property were the result of violations of the rules by the tenant for the operation and maintenance of the property, the tenant pays the landlord the cost of repair and transportation of the property.
Article 599. Fee For Usage Of The Property
1. The fee for usage of the property under the contract of hire, shall be established as defined in fixed amount of payments made periodically or at a time.
2. In the case of early return of the property by the tenant, the landlord shall return the appropriate part of the received payment for use of the property, calculating it from the day following the date of actual return of the property.
3. (Is excluded) Footnote. Article 599 as amended by the Law of the Republic of Kazakhstan dated March
29, 2000 No. 42.
Article 600. Use Of Leased Property
1. The capital and current repair of the property, rented under the contract of hire is the responsibility of the landlord.
2. Subleasing the property, granted to the tenant under the contract of hire, transferring the tenant’s rights and obligations under the contract of hire to another person, the provision of this property in the free use, pledge of the tenant and making them as in-kind contribution to business partnerships, joint-stock companies, the contribution to production cooperatives are not allowed.
Chapter 30. Hiring a home
Article 601. Contract Of Hiring A Home
1. Under a contract of hiring a home, home owner or an authorized person (the renter) agrees to provide citizen (the hirer) and the members of his (her) family home in use for a fee.
2. Contract of hiring a home should be in written form. Footnote. Article 601 as amended by the Law of the Republic of Kazakhstan dated
25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 602. Contract Of Hiring A Home In The Houses Of The State Housing Fund
1. The contract of hiring a home in the houses of the State Housing Fund is based on the decision of the local executive authority, a State agency or State Enterprise for housing.
2. Terms of housing, the rights and obligations of the parties, the base for changing and termination of the contract of hiring a home in the houses of the State Housing Fund are established by the housing legislation.
Footnote. Article 602 as amended by the Law of the Republic of Kazakhstan dated 22.07.2011 No. 479-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 603. Contract Of Hiring A Home In The Houses Of The Private Housing Fund
Terms of hiring a home in the houses of the Private Housing Fund are determined by agreement of the parties, unless otherwise stipulated by the housing legislation.
Chapter 31. Free use of property
Article 604. Contract For The Gratuitous Use Of Property
1. Under the contract for the gratuitous use of property (loan agreement), one party (the lender) transfers property to free temporary use of another party (the borrower) and the latter is obliged to return the same property in the same condition in which he (she) received it, subject to normal wear and tear, or condition provided by the contract.
2. To the contract for the gratuitous use of property shall apply respectively the rules of Article 541, paragraph 1 and first part of paragraph 2 of Article 545, 550 Article, Article 555 sub-paragraphs 1, 2, and 4 of paragraph 2 of Article 556, Article 558 of this Code.
3. To the contract for the gratuitous use of State property, the provisions of this Code with the features set by the legislation of the Republic of Kazakhstan on state property and other legislative acts of the Republic of Kazakhstan.
Footnote. Article 604 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 605. Lender
1. The right to transfer the property for free use belongs to the owner and other persons authorized by the legislations or by the owner.
2. Commercial organization is not entitled to transfer the property for free use to the person who is its founder, participant (shareholder), Director, Member of the management or controlling bodies.
Article 606. Providing Property For Free Use
1. The lender must provide the property in a state, corresponding to the terms of the contract of gratuitous use and purpose of the property.
2. The property is available for free use, with all its accessories and related documents ( the documents certifying the completeness, safety, quality, operating procedures, etc.), unless alternatively provided by the contract.
If such supplies and documents were not transferred, but without them the property cannot be used for the purpose or its use has largely lost value for the borrower, the latter may require the provision of such supplies and documents or termination of the contract and compensation for the real loss.
Article 607. Liability For Defects Of The Property, Handed Over For The Free Use
1. The lender, who transferred property for free use, shall be responsible for the defects of the property, which he (she) intentionally or recklessly did not specify when transferring the property, if it caused real damage to the borrower.
2. The lender, who is informed about the requirements of the borrower or his (her) intention to address the defects of the property by the lender, can immediately replace the defective items to other similar thing in good condition.
3. The lender is not responsible for the defects of the property, which had agreed in the terms of the contract or the borrower was previously known or should have been discovered during the inspection of the property or check the working order in conclusion of the contract or the transfer of things.
Article 608. Third Party Rights To The Property Transferred For Free Use
Transfer of property for free use shall not be grounds for modification or termination of third party rights to the property.
At the conclusion of the contract for the gratuitous use, the lender is obliged to notify the borrower with the all rights of third persons on the property (servitude, the mortgage right, etc .). Failure to perform this duty gives the borrower the right to demand termination of the contract and compensation for the real loss.
Article 609. Liabilities Of The Borrower On Maintain Of The Property
The borrower is obliged to maintain the property, received in the free use, in good condition, including the implementation of current and capital repairs and bear all the costs of its maintain, unless another is provided by the contract for gratuitous use.
Article 610. The Risk Of Accidental Loss Or Accidental Damage Of Property
The borrower bears the risk of accidental loss or accidental damage of donated property, if the property was lost or damaged due to the fact that he (she) used it not in accordance with the contract of gratuitous use or the purpose of the property or transferred it to a third party without the consent of the lender.
The borrower shall also bear the risk of accidental loss or accidental damage of property, if according to the actual circumstances the borrower could prevent the destruction or damage of property, by sacrificing his (her) property, but would prefer to save his (her) property.
Article 611. Liability For Damage, Caused To A Third Party Resulting From The Use Of Property
The lender is liable for damage to a third party caused by the use of the property, unless he (she) proves that the damage was caused due to the intent or gross negligence of the borrower or the person from whom the property was with the consent of the lender.
Article 612. Early Termination Of A Contract
1. The lender shall have the right to demand early termination of the contract for the gratuitous use in cases where the borrower:
1) uses the property not in accordance with the contract or the purpose of the property; 2) fails to comply with the obligations to maintain the property in good condition or its
maintenance; 3) significantly impairs the condition of the property; 4) without the lender’s consent transfer the property to a third party. 2. The borrower shall have the right to demand early termination of the contract for the
gratuitous use: 1) in case of deficiencies that make normal use of property impossible or burdensome, the
presence of which he (she) did not know and could not have known at the time of conclusion of the contract;
2) if property due to circumstances for which he (she) is not responsible, shall be in a condition unfit for use;
3) if at the conclusion of the contract the lender did not warn him (her) about the rights of third parties on the transferred property;
4) in the case of failure of the lender the obligation to transfer the property or its accessories and related documents.
Article 613. Repudiation Of A Contract
1. Each Party shall have the right at any time to withdraw from the contract for the gratuitous use, which is concluded without specifying the period, by notifying the other party for a month, if the contract does not provide a different period of notice.
2. Unless otherwise provided by the contract, the borrower shall have the right at any time to withdraw from the contract concluded with the term, in accordance with paragraph 1 of this Article.
Article 614. Changing The Parties In The Contract
1. The lender has the right to dispose of property or grant for a free use of a third party. In this case, to the new owner or the user shall transfer the rights from any previous contract for the gratuitous use, and his (her) rights in respect of property are burdened by rights of the borrower.
2. In the event of the death of the citizen-lender or the reorganization or liquidation of the legal entity-lender, the lender's rights and obligations under the contract for the gratuitous use shall transfer to the heir (successor) or to another person, to whom the ownership of the property or other right on the basis of which the property was transferred for free use.
In the event of a reorganization of a legal entity, the borrower's rights and obligations under the contract shall pass to the legal entity, that is his (her) successor, unless another is provided by contract.
Article 615. Termination Of A Contract
Contract for the gratuitous use shall be terminated in case of death of the citizen-borrower or liquidation of a legal entity-borrower, unless otherwise provided by the contract.
Chapter 32. Work and Labor Paragraph 1. General provisions of labor contract
Article 616. Work And Labor Contract
1. Under the contract, one party (the contractor) shall perform on the instructions of the other party (customer) some work and pass the result to the customer on time, and the customer undertakes to accept the result of work and pay for it (to pay the price of work). The work is performed for the risk of the contractor, unless another is provided by legislative acts or contract.
2. Unless otherwise provided by the contract, the contractor alone determines the methods for implementation of the project of the customer.
3. For certains of contract (customer work, construction contract, a contract for design and survey work, research, development and technological works) shall apply provisions of this paragraph, unless otherwise stipulated by the rules of this Code on contracts for these species.
4. Relationships for certains of labor contract can be regulated by this Code and legislative acts on certains of work and labor contracts.
Article 617. Performance Of Work By Dependent Contractor
1. Unless another is provided by the contract, the work performed by the dependent contractor is to be done from his (her) material, his (her) forces and means.
2. The contractor shall be responsible for the improper quality of their materials and equipment, as well as for the provision of materials and equipment, which are encumbered by third party rights.
Article 618. The Risk Of Accidental Loss Of Materials
The risk of accidental loss of materials Unless another is provided by legislation or by contract, the risk of accidental loss or
accidental damage of materials before the deadline for submission of the contractor by the contract work, lies with the party who is providing the materials. .
In case of delay the transfer or acceptance of the result of work, the risk lies with the delaying party, unless another is stipulated by legislation or the contract.
Article 619. The General Contractor And The Subcontractor
1. If the legislative acts or the contract do not provide otherwise, the contractor shall be entitled to bring to the execution of the contract the other parties (subcontractors). In this case , the contractor acts to the customer as a general contractor, and before the subcontractor as a customer.
2. The general contractor is liable to the subcontractor for nonperformance or improper performance of obligations by the customer, and before the customer is liable for nonperformance or improper performance of obligations of the subcontractor.
3. Unless otherwise provided by legislation or by contract, the customer and the subcontractor shall not be entitled to present to each other requirements, associated with the violation of their contracts with the general contractor.
4. With the consent of the contractor, the customer has the right to conclude a contract for the execution of certain works with third parties. In this case, the third party is liable for nonperformance or improper performance of work directly to the customer.
5. If the contract with two or more contractors and the subject of an obligation is indivisible, these contractors are recognized in relation to the customer joint debtors and joint
creditors respectively. The divisibility of the subject of an obligation, as well as in other cases stipulated by legislative acts or agreement of the parties, of each of the contractors acquires the rights and obligations in relation to the customer within their shares.
Article 620. Time Periods For Doing The Work
1. The work and labor contract specifies the starting and ending dates of work. By agreement between the parties, the contract may provide for the timing of the completion of certain work stages (intermediate terms).
Unless otherwise provided by the contract, the contractor is liable for breach of both the initial and final, and intermediate deadlines.
2. Specified in the contract initial, final and intermediate time of performance of work can be changed in the cases and in the manner prescribed by the contract.
Article 621. The Price Of Work
1. The work and labor contract specifies the price of performed work or the ways to define it. In the absence of such indications in the contract and no agreement of the parties, the price is set by the court, by comparing the prices of similar work, the price includes the necessary expenses incurred by the parties.
2. The price can be determined by costs estimates. In cases, where work is performed in accordance with the estimate made by the contractor
, the estimate takes effect and becomes part of the contract since its confirmation by the customer.
Price of work (cost estimate) can be rough or hard. In the absence of other indications in the contract, the price of work (cost estimate) is considered hard.
3. If there is a need for additional work and for this reason - in essentially increase a certain approximately price of work (rough estimate), the contractor shall promptly notify the customer and stop working. The customer, who does not agree to the excess of the price of work (estimates), shall have the right to cancel the contract. In this case, the contractor may require the customer to pay him (her) the actual price of the work.
4. The contractor, who does not warn the customer of the need to exceed the contractual price (estimate), is obliged to fulfill the contract, retaining the right to charge for the work at the price specified originally in the contract.
5. The contractor shall not have the right to demand to increase a firm price (solid estimate), and the customer is not entitled to demand its reduction, including in the case at the time of conclusion of the contract, excluded the possibility of providing full range of work, which shall be performed or the necessary expenses for the work.
With a significant increase after the contract, the cost of materials and equipment, which shall be provided by the contractor, and rendered to him (her) by third parties services, the
contractor is entitled to demand an increase of the established price (estimate), and if the customer fails to comply with this requirement - termination of the contract.
Article 622. Savings Of The Contractor
1. In cases, where the contractor's actual costs were lower than those, which is taken into account in determining the price (cost estimate), the contractor shall retain the right to charge for the work at the price, which is stated in the contract (estimate), unless the customer can prove that the contractor’s resulting savings negatively affected on the quality of the performed work.
2. The work and labor contract may provide for the distribution of the savings, received by the contractor between the parties.
Article 623. Order Of Payments For Work
1. If the work and labor contract does not provide pre-paid for the performed work or its individual stages, the customer is obliged to pay to the contractor the agreed price after the final delivery of the result of the work, which is provided that the work is done properly and within the agreed time, or with the consent of the customer - early.
2. The contractor shall have the right to demand advance payment or deposit paid, only in the cases and in the amount specified in the legislative acts or the contract.
Article 624. The Right To Offset
1. In case of failure of an obligation by the customer to pay the price or any other amount due to the contractor in connection with the performance of the contract, the contractor shall be entitled to hold the result of the work, as well as customer-owned equipment, transferred for processing things, the balance of unused materials and other any property of the customer before the payment of relevant amounts by the customer.
2. The contract may provide for retention of the customer the part of contractor’s amount of compensation to cover the cost to remedy the deficiencies, found within the limits provided in Article 630 of this Code.
Article 625. Performance Of Work Using Customer’s Materials
1. The contractor is obliged to use the materials provided by the customer economically and prudently, and after the work to present a report on the expenditure of the customer materials, and return the rest of them or, with the consent of the customer, reduce the price of work, retain the surplus materials and compensate the customer for the price of the surplus materials.
2. The contractor shall be liable for the improper performance of work caused by lack of materials provided by the customer, unless he (she) proves that the defects could not be detected by him (her) in proper acceptance of these materials.
Article 626. The Contractor’s Liability For Non-Safety Of The Property Provided By The Customer
The contractor is responsible for the non-safety of customer provided materials, equipment, transferred for processing things or other property, which were in the possession of the contractor in connection with the execution of the work and labor contract.
Article 627. Rights Of The Customer During The Execution Of The Work
1. The customer shall have the right at any time to check the progress and quality of work, without interfering in the activities of the contractor.
2. If the contractor does not proceed in a timely manner to the execution of the contract or performs work so slowly that its completion within the deadline established is clearly impossible, the customer is entitled to cancel the contract and claim damages.
3. If during the execution of the work, it becomes clear that it is not being executed properly, the customer has the right to appoint to the contractor a reasonable time to remedy the deficiencies. If the contractor fails to remedy these deficiencies in time, the customer has a right to cancel the contract or to request a correction of work to a third party at the expense of the contractor, as well as to demand compensation for damages.
4. Unless another cause is provided by the contract, the customer may at any time before the date of letting him (her) the work to cancel the contract, pay to the contractor for the work , performed prior to the notice of the customer’s refusal from the contract. The customer is also obliged to compensate the contractor for damages caused by the termination of the contract, within the difference between the part of the price paid for the performed work, and the price specified for all the work.
Article 628. Circumstances For Which The Contractor Must Notify The Customer
1. The contractor shall immediately notify the customer and get instructions from him (her ) to suspend the work if:
1) unsuitability or deficient customer-provided materials, equipment, technical documentation or transferred for processing things;
2) the possible adverse effects for the customer on the performance of his (her) instructions on how to perform the work;
3) other circumstances beyond the control of the contractor, which threaten service life or durability of the results of the work or create delays to the completion date.
2. The contractor, who shall not prevent the customer about the circumstances mentioned in paragraph 1 of this Article, or to continue the work without waiting for the expiration of a reasonable time to respond to a warning or even a timely indication of the customer to suspend the work, and upon presentation to him (her) or them to the relevant requirements of the customer shall not be entitled to refer to these circumstances.
3. If the customer, despite the timely and reasonable warning of the contractor about the circumstances referred to in paragraph 1 of this Article, within a reasonable period of time shall not replace unsuitable or poor quality material, change the instructions on how to perform the work or take other necessary measures to remedy the circumstances, that threaten fitness or durability of the work, the contractor shall be entitled to cancel the contract and demand compensation for damages caused by the termination.
Article 629. Assistance Of The Customer
1. The customer is obliged to assist the contractor in the performance of work in the extent and in the manner prescribed by the work and labor contract.
In the event of the non-performance of this obligation by the customer, the contractor has the right to demand compensation for damages, including the extra costs, caused by the downtime or deferral of execution of work or increase in the price of work.
2. In cases, where the performance of work under the contract became impossible due to the actions or omissions of the customer, the contractor reserve the right to charge him (her) of a fixed price for performance of the work.
Article 630. Acceptance Of The Performed Work By The Customer
1. The customer is obliged in terms and in the manner provided by the work and labor contract, with the participation of a contractor to inspect and accept the result of the performed work. When the customer detects a deviation from the contract, which could affect the work or other defects in the work, the customer should immediately notify the contractor about it.
2. The customer, who has discovered defects in work at its acceptance, has the right to refer to them only if the act or in any other document evidencing the acceptance, these defects have been stipulated or the possibility of further claims to eliminate them.
3. The customer, who accepts the work without checking, loses the right to refer the defects of the work, which could be established by the usual method of its acceptance ( apparent defects).
4. The customer, who discovered after acceptance of the results of work the deviation from the contract or in any other deficiencies that could not be established in the usual
method of acceptance (hidden defects), including some that have been deliberately hidden by the contractor, shall be obliged to notify the contractor within a reasonable time upon their discovery.
5. The deadline for notifying the contractor about the hidden defects, discovered by the customer is one year, and in the case of works related to buildings and structures, as well as regardless of the of work - on the deficiencies that have been deliberately hidden by the contractor - three years from the date of acceptance.
Legislative acts or contract may establish a time limit (warranty periods) of longer duration.
If, in accordance with the contract, the work is accepted by the customer in part, time limit under this paragraph begins from the day of acceptance of the results of the work as a whole.
6. If there is a dispute between the customer and the contractor regarding the defects of the performed work or their reasons, shall be assigned the examination at the request of any parties. The contractor shall pay the costs of examination, except in cases, where the examination found no violations of the contract or the causal link between the actions of the contractor and discovered deficiencies. In these cases, the costs of expertise shall be paid by the party, who demands its appointment, and if expertise appointed by agreement between the parties both parties shall pay equally.
7. In the case of deviation of the customer to accept the results of the performed work, the contractor shall have the right within a month from the day when, according to the contract, the work had to be transferred to the customer, and then after double-warning the customer, to sell the results, and the received amount, after the deduction of all payments to the contractor, make notary’s deposit in the name of the customer, unless another is provided by the contract.
8. If the customer’s failure to accept the results of the work led to the delay in delivery of the work, the ownership of production (revised) the asset is recognized to have passed to the customer at the time when the transfer took place.
Article 631. Payments Between The Parties In The Case Of The Destruction Of The Subject Of Contract Or Impossibility Of Finishing The Work
If the subject of the contract before putting it accidentally ruined or finishing the work became impossible through no fault of the parties, the contractor shall not have the right to claim compensation for the work.
If the destruction of the subject of contract or impossibility of finishing the work occurred due to deficiencies of the material, delivered by the customer or his (her) instructions on how to execute the work, or the delay occurred after acceptance by the customer of the performed work, and the contractor has complied with the rules of Article 628 of this Code, the contractor shall retain the right to remuneration for the work.
Article 632. Quality Of Work
1. The work performed by the contractor shall comply with the terms of the contract, and in their absence or incompleteness - those requirements which are generally applicable to the work of the relevant kind.
2. If the legislative acts provides mandatory requirements for work performed under the work and labor contract, the contractor, acting as an entrepreneur is obliged to perform the work, following to these mandatory requirements.
The contractor may accept the obligation under the contract to perform work that meets higher quality requirements by the request of the customer than specified by mandatory requirements.
Article 633. Guarantee Of Quality Of The Work
1. In the case, where the legislation or the contract provides the contractor’s guarantee of quality of the work to the customer, the contractor is obliged to transfer the result of the work to the customer, which must meet the requirements of Article 632 of this Code throughout the warranty period.
2. Guarantee quality of the work, unless another is provided by the contract, shall apply to all the elements that make up the result.
Article 634. The Procedure For Calculating The Guarantee Period
Unless otherwise by contract, the warranty period begins to run when the results of the work have been or should have been accepted by the customer.
Article 635. The Contractor’s Liability For Improper Performance Of Work
1. If the work performed by the contractor with the recession from the contract, or other defects that make it unsuitable under the contract or - if there is no relevant provision in the contract for normal use, the customer is entitled, unless another is established by legislative acts or contract, choose to require the contractor to:
1) free elimination of deficiencies of the work within a reasonable time; 2) proportional reduction of prices established for the work;
3) payment of his (her) costs for removal defects, when the right of the customer to eliminate them, is provided in the contract.
2. The contractor may instead address the shortcomings of the work, for which he (she) is responsible, free of charge to perform the work again with the recovery of the customer losses caused by the delay of execution. In this case, the customer is obliged to return the previously referred to the results of work to the contractor, if the nature of such a return is possible.
3. If deviations from the terms and conditions of the contract or other deficiencies are significant and non-removal or within a reasonable time the defects detected by the customer have not been remedied, the customer is entitled to cancel the contract and claim compensation for damages.
4. The contract may exempt the contractor from liability for certain defects. This condition shall not apply if the customer proves that the defects occurred due to faulty actions or inactivity of the contractor.
5. The contractor, who provided the materials for the work, is responsible for their quality according to the rules on the liability of the seller for the goods of improper quality ( sub-paragraphs1, 3 and 5 of paragraph 1 of Article 428 of this Code).
Article 636. The Limitation Period For Claims Of Improper Quality Of Work
The limitation period for claims caused by improper quality of the work, performed under the work and labor contract shall commence from the date of detection of defects, which the customer has declared within the period provided in Article 630 of this Code.
Article 637. Contractor’s Obligation To Transfer The Information To The Customer
The contractor is obliged to disclose to the customer together with the result, the information concerning the operation or other use of the subject of the contract, if it is provided by the contract, or the nature of the information is such, that without it impossible to use the results of the work for the purposes specified in the contract.
Article 638. Confidentiality Of The Information Received By The Parties
If the party, thanks to the performance of his (her) obligations under the contract, received from another party information about new solutions and technical knowledge, including not enjoying legal protection, as well as information that may be regarded as a commercial secret, he (she) shall not disclose them to any third party without the consent of the other party.
Procedure and conditions for the use of such information shall be determined by agreement of the parties.
Article 639. Return To The Customer Materials And Equipment
In cases, where the customer in accordance with paragraph 4 of Article 627, and paragraph 3 of Article 635 of this Code withdraw from the contract, the contractor is obliged to return to the customer supplied materials, equipment transferred for processing thing and other property or to delivers them to the person, indicated by the customer and if it was impossible - to compensate the cost of materials, equipment and other property obtained from the customer.
Paragraph 2. Features of Domestic Work Contract
Article 640. Contract for domestic work
Under the domestic work contract, the contractor engaged in entrepreneurial activities, shall perform on the instructions of the citizen-customer a certain work, designed to satisfy household or other personal needs of the customer, and the customer agrees to accept the work and pay for it.
Domestic work contract is public contract (Article 387 of this Code).
Article 641. Guarantee The Rights Of The Customer
1. The contractor shall not be entitled to impose the customer to include in the contract of domestic work additional retaliation works or services. In violation of this requirement, the customer has the right to refuse payment of such works or services.
2. The customer may at any time, before delivery of the work to withdraw from the domestic work contract, pay to the contractor part of the established price for the work, performed prior to the notice of refusal of the customer from the contract, and the customer is obliged to compensate to the contractor expenses incurred up to this moment. Terms of the contract, depriving the customer from this right, is not valid.
Article 642. Form Of Contract
Unless another is provided by legislative acts or contract, including the terms of forms or other standard forms, joined by the customer (Article 389 of this Code), the domestic work contract is considered to be concluded in the proper form since the date of issue by the contractor to the consumer a receipt or other document confirming the conclusion of the contract.
The absence of these documents at the customer does not deprive him (her) of any right to refer to evidence in confirmation of the contract or its terms.
Article 643. Presentation Of The Information About The Results Of The Work To The Customer
Upon delivery the results of the work to the customer, the contractor is obliged to inform him (her) about the requirements that must be followed for the effective and safe use of manufactured or altered things or other results of the performed work, as well as possible for the customer and other persons consequences of non-compliance of the relevant requirements.
Article 644. Presentation To The Customer The Information On Work
1. The contractor is obliged, before conclusion of the domestic work contract, to provide the customer the necessary and accurate information on the proposed works, theirs and details , the price and form of payment for work, and to inform the customer, upon request, other related to the contract and the relevant to work information. If it is important to the character of the work, the contractor shall indicate the customer a specific person who shall fulfill it.
2. The customer is entitled to demand termination of domestic work contract and compensation of damages in cases where, on the basis of incomplete or unreliable information provided by the contractor was concluded the contract for execution of works that do not have properties, which mean the customer.
Article 645. Execution Of Work From The Materials Of Contractor
1. If the work under the domestic work contract is executed from the contractor’s material , the material shall be paid by the customer at the conclusion of the contract in whole or in part specified in the contract, with the final settlement of the customer on receipt of the results of work performed by the contractor.
According to the contract the material may be provided by the contractor to the loan, including the terms of payment for the material by installments by the customer.
2. Change in the price of the material provided by the contractor after the conclusion of the contract shall not involve the allocation.
Article 646. Execution Of Work From The Materials Of Customer
If the work under the domestic work contract is executed from the customer’s material, in the receipt or other document issued by the contractor to the customer at the conclusion of the contract, shall specify the exact name, number, description and price of materials, which are determined by agreement of the parties. Materials evaluation in the receipts or other similar document may be subsequently challenged in court by the customer through written evidence.
Article 647. Price And Payment For Work
The price in the domestic work contract is determined by the agreement between the parties and cannot be higher than indicated in the price list, announced by the contractor. The work shall be paid by the customer after the final delivery of the results by the contractor. By agreement of the parties, the work may be paid by the customer at the conclusion of the contract in full or by payment of an advance.
Article 648. Consequences Of The Discovery Of Defects In The Performed Work
1. The customer can make one of those rights, which are prescribed in Article 635 of this Code, when he (she) discovered deficiencies at the time of acceptance of the results of work
or while using the subject of contract - within the general time period provided in Article 630 of this Code, and in the presence of the warranty period - within these deadlines.
2. Requirement of free elimination of these deficiencies of the work, performed under the domestic work contract, and which may be dangerous to life or health of the customer and other persons, may be presented by the customer or his (her) successor, within three years from the date of acceptance of the work, if the legislative acts provide another terms (terms of service). Such a claim may be asserted regardless of when discovered these defects, including their discovery at the end of the warranty period.
In the case of failure by the contractor of this requirement, the customer is entitled within the same period to require the return of the part of price paid for the work, or expenses incurred to remove deficiencies in the home or with the help of third parties.
Article 649. Consequences Of Failure To Appear Of The Customer For Obtaining The Results Of The Performed Work
1. In the event of failure of the customer to obtain the results of the work or other deviations of the customer from the acceptance of it, the contractor shall be entitled to notice the customer, and within two months from the date of such notice to sell the subject of the contract for a reasonable price, and the proceeds, with deduction of any payments due to the contractor, to make notary’s deposit in the name of the customer, in accordance with article 291 of this Code.
2. As indicated in paragraph 1 of this Article, the contractor may instead of selling the subject of the contract to exercise the right of retention it (Article 624 of this Code) or to collect the damages from the customer.
Article 650. The Consequences Of The Death Of One Of The Parties In The Contract
In cases of termination of the domestic work contract on the grounds of death of one of the parties (Article 376 of this Code), the consequences of termination of the contract shall be determined by agreement between the successor of the party and its contractor, and if there is no agreement between them - by the court, taken into account the size of the executed works and their prices, the cost of consumed and preserved material, and other relevant circumstances.
Paragraph 3. Features of Construction Contract
Article 651. Construction Contract
1. Under the construction contract the contractor agrees in the original terms according to the customer to build a specific object or perform other construction work, and the customer
agrees to provide the contractor with the necessary conditions for the performance of work, accept the result and pay for it at the agreed price.
2. The construction contract is for the construction or reconstruction of enterprises, buildings (including the house), facilities or another object, as well as for erecting, commissioning and other, which is closely related to the project under construction, works. The rules of this paragraph shall also apply to major repairs of buildings and constructions, unless otherwise provided by the contract.
If it is stipulated in the contract, the contractor shall undertake to ensure the operation of the facility after its acceptance by the customer within the specified term in the contract.
3. With the contract on the construction of "key ready" the contractor assumes all responsibilities for construction and its maintenance and must have passed to the customer object, ready to use, according to the contractual terms.
4. The owner of the construction in progress until its delivery to the customer and payment for work is the contractor.
5. In cases, where under the construction contract is performed, the works for domestic or other personal needs of the citizen (customer), respectively, to such contract shall be applied the rules on the rights of the customer under the domestic work contract.
Article 652. Allocation Of Risk Under The Construction Contract
1. In the event of destruction or damage of the construction project due to force majeure before the expiry of the deadlines for submission of work, the customer is obliged, unless another is provided by the contract, to pay the cost for completed work and (or) reconstruction.
2. Unless otherwise provided by legislation or contract, the risk of accidental causes preventing the performance of work before the delivery shall be borne by the customer.
3. The contractor shall bear the risk of accidental rise in price of works. 4. Contract may provide the transfer to the contractor all possible construction risks ("key
ready" contract). 5. The contract may provide the risk insurance of the contractor. In this case, the
insurance costs are included in the cost of construction, which are considered when determining the remuneration for the performed work.
Article 653. Refusal For Safety Of Conducting Works
The contractor bears responsibility for safety of conducting works.
Article 654. Design Estimate Documentation
1. The contractor is obliged to carry out the construction and related works in accordance with the project document, that defines the scope and content of the work and other requirements, and estimate that determines the price of works.
Unless another is specified in the contract, is expected that that the contractor shall perform all work described in project documentation and estimates (design estimate documentation).
2. Unless another is provided by the contract, design estimate and other technical documentation, written in a foreign language, shall be transferred to the contractor translated into the State or Russian language. The units must comply with the metric system, established by the legislative acts.
3. By contract for construction work must be defined the composition and content of design-estimate documents, and shall be provided, which party and in what period must provide appropriate documentation.
4. The contractor, who discovered in the course of construction the works, which are not included in the design and estimate documentation and in connection with the need for additional work and an increase in the estimated cost of construction, must inform the customer.
With a lack of response from the customer to his (her) message within ten days if the legislation or contract does not provide for this particular period, the contractor may suspend the relevant work with the appropriate allocation of losses caused by downtime, at the expense of the customer.
5. The contractor, who has not performed the obligations established by paragraph 4 of this Article shall not be entitled to claim payment from the customer for performed by him ( her) extra work and compensation for damages caused by this, unless it proves the need for immediate action is in the interests of the customer, in particular, due to the fact that the suspension of work could result to loss or damage of the construction object.
6. With the consent of the customer for additional work, and their payment, the contractor has the right to refuse to perform these works only in cases, where they do not fall within the professional activities of the contractor, or the contractor cannot perform for reasons beyond his (her) control.
Article 655. Changes To The Design Estimate Documentation
1. The customer has the right to demand changes to the design and estimate documentation, which are not related to extra costs to the contractor and (or) extension of deadlines.
2. Changes of the design-estimate documentation for extra costs to the contractor, shall be covered by the customer on the basis of supplementary estimates agreed by the parties.
3. The contractor is entitled to demand the revision of estimates, if due to circumstances beyond his (her) control cost of the work exceeded the estimate by at least ten percent.
4. The contractor shall have the right to demand compensation of reasonable expenses incurred in connection with the establishment and removal of defects in the design estimate documents, except for the cases when such documentation was written at his (her) request.
Article 656. Financial Security Of The Work
1. Responsibility for provision the construction with materials, including details and designs, as well as equipment shall be borne by the contractor, unless the contract provides that the supply of the construction materials in whole or in part is the responsibility of the customer.
2. The contractor, whose duties include providing the construction materials, shall bear the risk of detected impossibility of use, without compromising the performance standards of the materials (details, structures), or equipment provided by the customer.
3. In the cases of detection impossibility of use, without compromising the performance standards of the materials (details, structures),, or equipment provided by the customer, the contractor shall require their replacement by the customer within a reasonable period, and in the case of non-fulfillment of this requirement, the contractor shall be entitled to cancel the contract and demand from the customer to pay the price of contract in proportion to the executed part of the work, as well as compensation for losses, which are not covered by this sum.
Article 657. Payment For Work
1. Payment for the performed work is made by the customer, in the amount provided in the estimates, at the time and in the manner established by legislative acts or contract. In the absence of appropriate legislative acts or contract, payment for the performed work of the contractor shall be made in accordance with Article 623 of this Code.
2. During the construction on a turnkey basis, the indicated in the contract price shall be paid in full, upon acceptance of the object by the customer, unless another is provided by agreement of the parties.
Article 658. Providing The Land Section For Construction
The customer shall be obliged to provide land for the construction in such area and state as indicated in the contract. In the absence of such instructions in the contract, the area and the state of the land should ensure the timely start of work, their normal maintenance and completion on time.
Article 659. Additional Duties Of The Customer In The Contract For Construction Work
The customer is obliged in the cases and in the manner prescribed by the contract for construction work, to transfer to the contractor for the use needed buildings and facilities, to ensure the transportation of goods to the contractor, the temporary power supply networks, water and steam lines, and provide other services. Payment shall be made on the terms stipulated in the contract.
Article 660. Control And Supervision Of The Customer For The Execution Of Work Under The Contract
1. Customer in the contract for construction work is entitled to exercise control and supervision over the progress and quality of the performed work, compliance with the terms of their performance (schedule), the quality of the materials provided by the contractor, and the correct use of the customer’s material by the contractor, without interfering the operational and economic activities of the contractor.
2. The customer, who in the control and supervision over the work found the waiver from the conditions of the contract, which could affect the quality of work or other deficiencies in it, must immediately declare this to the contractor. The customer, who has not made such a statement, loses the right to refer to the detected deficiencies in future.
3. The contractor is obliged to execute customer's instructions, obtained during the construction, and if such instructions do not conflict with the terms of the contract and interfere in the operational and economic activities of the contractor.
4. Contractor, who improperly executes the work, may not refer to the fact that the customer has not control and supervise of the execution, unless the obligation to exercise such control and supervision is the responsibility of the customer by legislative acts or contract.
Article 661. Contractor Responsibilities For The Environmental Protection And Safety Management Of Construction Works
The contractor shall have no right to use in the implementation of the work materials ( details, constructions) and equipment provided by the customer, or to carry out his (her) instructions, if this may lead to a violation of the mandatory requirements for the parties on the protection of the environment and safety of the construction work.
Article 662. Obligations Of The Parties With The Conservancy Of Construction
If, for reasons beyond the control of the parties, the work under the contract of construction is suspended and the construction object is conserved, the customer is obliged to
pay to the contractor fully for the executed work prior to the conservation work, and to compensate the costs caused by the need to halt the construction work and conservation.
Article 663. Delivery And Acceptance Of The Results Of Work
1. The customer, who received the message from the contractor on readiness for handing over of the works, performed under the contract of construction or, if this is provided by the contract,- stage of working, must immediately proceed the acceptance of the results.
2. The customer organizes and implements the results of work at his (her) own expense, unless otherwise stipulated by the contract. In cases stipulated by legislative acts, in the acceptance of the results of works the representatives of state bodies and bodies of local self-government should participate.
3. The customer, who is previously adopted the individual stages of work, shall bear the risk of loss or damage, which is not fault of the contractor, including in cases, where the contract provides for execution of works for the risk of the contractor.
4. Delivery of the results of the contractor and acceptance of them by the customer shall be formalized by act, signed by both parties, and in cases stipulated by legislative acts - by representatives of state bodies and bodies of local self-government. In case of failure of one party to sign the act, it is marked about this and shall be signed by the other party.
A unilateral act of delivery or acceptance of the results of work can be recognized by a court as valid, only if reasons for the refusal to sign the act recognized unreasonable by the court.
5. In cases, where this is stipulated by legislative acts or contract or follows from the nature of the work, performed under the contract of construction, the acceptance of the results should be preceded by preliminary tests. In these cases, the acceptance of the results of work can only be done with a positive result of preliminary tests.
6. The customer shall be entitled to refuse from the acceptance of the results of work in case of deficiencies, that prevent the use of the results of work for the purpose specified in the contract and cannot be removed by the contractor, the customer or a third party.
If during the acceptance found any deficiencies, they must be specified in the act, provided by paragraph 4 of this Article.
7. In cases stipulated by legislative acts, built objects should be accepted by the State Commission.
The Government of the Republic of Kazakhstan establishes the procedure for state acceptance of constructed objects and determines the possibility of participation of State bodies in interim acceptance.
Article 664. Contractor’s Liability For Quality Of Work
The contractor shall be liable to the customer for the deviations from the requirements of the contract, project and binding on the parties construction regulations, as well as for failure on the indications of construction object, specified in the design estimate documentation, including the production capacity of the enterprise.
On reconstruction (renovation, rebuilding, restoration, etc.), of a building or facilities, the contractor shall be responsible for the reduction or strength loss, stability, solidity of buildings, facilities or their integral parts.
Article 665. Guarantee Of Quality In The Construction Contract
1. The contractor, unless another is provided by the construction contract, guarantees achievement of indicators by the object of construction specified in the design-estimate documentation and the possibility to operate the facility in accordance with the contract during the warranty period. The warranty period is ten years from the date of acceptance of object by the customer, unless a different warranty period is provided by legislative acts or contract.
2. The contractor is liable for defects, discovered within the warranty period, unless it is proved that they arose as a result of normal wear and tear of the object or its parts, its improper use or incorrect instructions for its use, which are developed by the customer or the third parties involved by him (her), improper repair of the object, produced by the customer or the third party involved by him (her).
3. Running the warranty period shall be suspended for the time during which the object could not be used, due to defects (defects or deficiencies), under the responsibility of the contractor.
4. When detecting defects within the warranty period, specified in paragraph 4 of Article 630 of this Code, the customer must inform about them to the contractor within a reasonable time after their discovery.
5. Construction contract may stipulate the right of the customer to hold back the part of the prices of work indicated in the estimate provided in the contract before the end of the warranty period.
Article 666. Removal Of Deficiencies At The Expense Of Customer
1. Construction contract may provide the contractor's obligation to remove at the request and at the expense of the customer defects (defects and deficiencies), for which the contractor is not responsible.
2. The contractor shall have the right to refuse to perform works specified in paragraph 1 of this Article in cases, where they are not directly related to the subject of the contract, or cannot be performed by the contractor for reasons beyond his (her) control.
Paragraph 4. Features of a construction for design and prospecting work
Article 667. Contract Of Construction For Design And Survey Work
1. Under the construction contract for design and survey work, the contractor (designer, prospector) undertakes to develop, according to the order of customer the design estimate documentation and (or) perform exploration work, and the customer agrees to accept and pay for them.
2. Unless another is stipulated by legislative acts or the contract for design and survey work, the risk of accidental impossibility of performance of the contract for design and survey work rests to the customer.
Article 668. Initial Data For The Design And Prospecting Work
1. Under the construction contract for design and prospecting work, the customer is obliged to transfer to the contractor the design assignment, as well as other basic data necessary for producing design-estimate documents. Design assignment on behalf of the customer can be prepared by the contractor. In this case, the task becomes binding on the parties from the moment of its approval by the customer.
2. The contractor shall comply with the requirements of the job and other initial data for designing and execution of prospecting work, and have the right to derogate from them only with the consent of the customer.
Article 669. Obligations Of The Customer
Under the construction contract for design and prospecting work, the customer is obliged, unless another is provided by the contract:
1) to pay the contractor the price after the completion of all work, or to pay it in installment upon completion of individual stages of work;
2) to use of design-estimate documentation, received from the contractor, only for the purposes specified in the contract, not to transfer design-estimate documentation to third parties and to disclose the information, without the consent of the contractor;
3) to provide services to the contractor in the design and prospecting work in the extent and on the terms the stipulated in the contract;
4) to participate with the contractor in the agreement of the finished design-estimate documentation with the competence state bodies and bodies of local self-government;
5) to compensate the contractor for the additional costs, caused by the change of initial data for design and prospecting works, due to circumstances beyond the control of the contractor;
6) involve the contractor to participate in the suit, filed to the customer by a third party in connection with deficiencies of prepared project documentation or completed survey works.
Article 670. Obligations Of The Contractor
Under the construction contract for design and survey work, the contractor shall: 1) perform work in accordance with the transferred to him (her) base data for design at the
conclusion of the contract; 2) agree with the customer the finished design and estimate documentation and, if
necessary, agree together with the customer, with the competent State bodies and bodies of local self-government;
3) unless another is provided by the contract, transfer to the customer at the same time the ready design and estimate documentation and the results of survey works;
4) not transfer the design and estimate documentation to any third party without the consent of the customer.
Article 671. Guarantees Of The Contractor
Contractor under the contract for the design and survey works guarantees the customer the lack of third-party rights to prevent or limit the performance of work, on the basis of the prepared by the contractor design-estimate documentation.
Article 672. Contractor’s Liability For Defects Of The Design Estimate Documentation And Survey Works
1. Contractor under the contract for the design and survey works is responsible for the shortcomings of the design-estimate documentation and survey works, including defects identified later, during the construction and the operation of the facility, which is based on the development of design-estimate documentation and data of survey works.
2. In the case of detection of defects in the design and estimate documentation or in survey work, the contractor is obliged on request of the customer, free of charge, to alter the design and estimate documentation and accordingly make the necessary additional survey work, and also compensate the customer’s losses, unless the legislation or the contract provides otherwise.
3. Claims, arising from the deficiencies of design documentation, may be presented by a person, who is using the design documentation, even though he (she) was not a customer in its construction.
Paragraph 5. Features of the contract for research, development and technological work
Article 673. Contracts For Research, Development And Technological Work
1. Under the contract for research work, the contractor (executor) is obliged to carry out the research due to requirements of the customer, and on the contract for the development and technological works - to develop a model of a new product, the construction documentation on it, a new technology or to make the pattern; an d the customer agrees to give the contractor (executor) technical requirements, to take the results of the work and pay for them.
2. The contract with the contractor (executor) may cover the whole cycle of research, development and manufacturing of samples and their individual elements.
Article 674. Execution Of Works
1. Contractor (executor) is obliged to make research personally. Unless another is provided by the contract, he (she) is entitled to engage the third parties in the performance of the scientific research contract, only with the consent of the customer.
2. In the performance of development and technological works, the contractor is entitled to involve in the execution the third parties as subcontractors, unless otherwise provided by the contract,
Article 675. Hand Over, Acceptance And Payment For Work
The contractor is obliged to hand over (executor), and the customer to accept and pay fully for the completed research, development and technological works. Contract may provide for the acceptance and payment of the individual stages of works or any other payment method.
Article 676. Privacy Of The Contract
Unless otherwise provided by the contract for research or development and technological works:
1) the contractor (executor) and the customer must ensure the confidentiality of information relating to the subject matter of the contract, the progress of its execution and results. The amount of information, which is recognized as confidential shall be determined in the contract;
2) The contractor shall be entitled to patent the results of work, obtained under this contract, only with the consent of the customer.
Article 677. Rights Of The Parties On The Results Of Work
1. The customer under the contract for research or development and technological works has the right to use the results of the work, transferred to him (her) to the extent and under the conditions provided in the contract.
2. Unless otherwise provided by the contract, the contractor (executor) may use the received result of the works for him (her) self.
3. The contract may provide the right of the contractor (executor) to implement the results to the third parties.
Article 678. Obligations Of The Customer
Customer under the contract for research or development and technological work must: 1) give the contractor (executor) technological requirements and agree with him (her) the
program (technical and economic parameters) or the subject of the work; 2) transfer to the contractor (executor) required for the work information; 3) to take the results of the performed work and pay for them (Article 623 of the Code).
Article 679. Obligations Of The Contractor (Executor)
1. Contractor (executor) under the contract for research or experimental development and technological work must:
1) perform the work in accordance with the program or theme, agreed with the customer ( technical and economic parameters) and give the results to the customer in the contract time;
2) comply with the requirements relating to the legal protection of intellectual property; 3) by his (her) own efforts and expenses, remove admitted to his (her) fault, deficiencies
in the technical documentation, which could lead to deviations from the technical and economic parameters, stipulated in the technical specifications of the customer or in the contract;
4) immediately inform the customer about the detected inability to obtain the expected results or inexpedient to continue the work;
5) guarantee to the customer the lack of third parties of exclusive rights for the transferred results on the basis of such contract.
2. Unless another is provided by the contracts for research, development and technological works, the contractor (executor) must:
1) refrain from publishing without the consent of the customer for technical and scientific results, obtained during the work;
2) take steps to protect received during the work, capable for legal protection results and inform the customer;
3) provide customer with exclusive license for the use of legally protected scientific and technical results, applied to the completed works.
Article 680. Consequences Of Failure To Achieve Result In The Contract On Scientific-Research Works
If, in the course of scientific-research works reveals the inability to achieve results due to circumstances beyond the control of the contractor (executor), the customer is obliged to pay the cost of work performed prior to the detection inability to achieve the results provided in the contract, but not exceeding the relevant part of the price of the works, specified in the contract.
Article 681. Consequences Of Failure To Achieve Result In The Contract On Development And Technological Works
If in the course of development and technological works are detected the fault on the impossibility or inexpediency of continuing the work, for which the contractor is not responsible, the customer must pay for the cost incurred by the contractor.
Article 682. Liability Of The Contractor (Executor) For Breach Of Contract
1. Contractor (executor) shall be liable to the customer for non-execution or improper execution of the contract for scientific research or experimental development and technological works, unless he (she) proves that the breach of contract occurred due to the contractor (executor).
2. Contractor (executor) who breaches the contract, is obliged to pay damages to the customer in the form of real damage, unless the contract provides otherwise.
Chapter 33. Paid services
Article 683. Paid Service Agreement
1. Under the paid service agreement the contractor shall on the instruction of the customer provide services (to perform certain acts or to carry out certain activities), and the customer agrees to pay for these services.
2. The provisions of this chapter shall apply to contracts of communications services, medical, veterinary, audit, consulting, information services, training services, tourism services and the other, except for services, provided under the contract as specified in Chapters 32, 34, 35, 39, 41, 43 and 44 of this Code.
Article 684. Performance Of The Contract For Paid Services
Unless another is provided by paid service contract, the Contractor shall provide the services personally.
Article 685. Payments For Services
1. The customer is obliged to pay for services rendered to him (her) in time and in the manner specified in the contract for paid services.
2. In case of impossibility of performance, caused by fault of the customer, the services shall be paid in full, unless otherwise provided by legislation or a contract for paid services.
3. If the impossibility of performance arose due to circumstances for which neither party is responsible, the customer shall fully compensate the contractor the actually incurred costs, unless another is provided by legislation or contract.
Article 686. Unilateral Refusal To Perform Paid Service Agreement
1. The customer shall be entitled to cancel the contract of paid services, subject to payment to the executor the actually incurred expenses.
2. The contractor shall have the right to refuse to perform the obligations under the contract of paid services, only with the full compensation for damages to the customer, caused by the termination of the contract, unless it was the fault of the customer.
Article 687. Legal Regulation Of The Paid Service Agreement
General provisions on the work and labor contract (Articles 616-639 of this Code) and the provisions on domestic contract (Articles 640-650 of this Code) shall apply to the paid services contract, unless this is contrary to Articles 683-686 of this Code, as well as special paragraphs of paid services contract.
Chapter 34. Transportation
Article 688. General Provisions
1. Transportation of goods, passengers and luggage is carried out on the basis of the contract of carriage.
2. General conditions of carriage are determined by legislative acts on transport, other legislative acts and regulations made under these rules.
Conditions for the carriage of goods, passengers and luggage by differents of transport shall be determined by agreement of the parties, unless this Code, legislation on transport, other legislative acts and regulations made under these rules provides otherwise.
Article 689. Contract On Carriage Of Goods
1. Under the contract of carriage of goods, one party (the carrier) is obliged to deliver the entrusted to him (her) by the other party (the sender) goods to the destination and to give
authorized to receive the goods person (the recipient), and the sender agrees to pay for the shipping fee, according to the contract or tariff.
2. Contract of carriage is made by transport bill, consignment, bills of lading or other document to the goods, provided by legislative acts on transport.
Article 690. Contract On The Carriage Of Passengers
1. Under a contract of carriage of the passenger, the carrier undertakes to carry the passenger to the destination and, in the case of attached passenger baggage-also deliver baggage to the destination and hand baggage authorized to receive the baggage person; the passenger agrees to pay the fare, and for transports for their person and their baggage.
2. The contract for the carriage of passengers and baggage is accordingly issued by a travel ticket and baggage check. The form of ticket and baggage check, is established in the manner prescribed by legislative acts on transport.
Article 691. Contract Of Affreightment (Of Charter)
Under the contract of affreightment (of charter), one party (carrier) is obliged to provide to the other party (the charterer) for a fee all or part of the capacity of one or more vehicles on one or more flights for the carriage of passengers, baggage and cargo.
The procedure for the conclusion of contract of affreightment and the form of the contract and its kinds are established by legislative acts on transport.
Article 692. Contracts On Transport Management
The carrier and the shipper, if necessary, for systematic traffic may conclude long-term contracts on transport management.
Under the contract of transport management of goods, the carrier is obliged to take, within the prescribed time and the shipper is obliged to offer for carriage, the goods in the stipulated amount.
Contract on transport management is determined the volume, timing, quality and other conditions of delivery of vehicles and presents the goods for carriage, as well as other conditions of transport management, which are not provided by legislative acts.
Article 693. Contracts Between Transport Organizations
Between organizations of differents of transport can be concluded contracts on ways to ensure transportation of goods (nodal agreements, contracts for centralized delivery (exports) of goods, etc.).
Procedure for the conclusion of such contracts is defined by legislative acts on transport.
Article 694. Direct Mixed Traffic
The relationship of transport organizations during the transportation of goods, passengers and baggage by different modes of transport on a single transport document (direct mixed traffic), as well as the Organization of transport is determined by agreements between the organizations of the respective modes of transport, concluded in accordance with the legislative acts on the direct multimodal transport.
Article 695. Transportation By Transport For Public Use
1. Transportation carried out by a commercial organization, recognized as a public transport carriage, in the case, if the legislation and other normative legal acts or issued by the organization license (patent) provides that this organization is obliged to transport passengers, cargo and (or) baggage handling of any citizen or legal entity.
2. The contract of carriage by public transport is a public contract (Article 387 of this Code).
Article 696. Supply Of Vehicles, Loading (Unloading) Of Cargo
1. The carrier is obliged to submit to the shipper the goods for loading, within the period, prescribed in the application (the order), the contract of carriage serviceable vehicles in a condition suitable for the carriage of the goods.
Consignor has the right to refuse to cast vehicles, unsuitable for the carriage of cargo. 2. Loading (unloading) of cargo is carried out by the transport organization or by the
sender (receiver) in the manner and time prescribed by the contract, subject to the requirements established by the legislative acts on transportation and the rules published in accordance with them.
3. Loading (unloading) of cargo, carried by forces and means of the consignor (consignee) , must be made within the time specified in the contract, if such terms are not established by legislative acts on transportation and by the rules published in accordance with them.
Article 697. Carriage Charge
1. For the carriage of goods, passengers and luggage where there is a fee, this must be established by agreement of the parties, unless otherwise provided by legislation.
2. Payment for the transportation of goods, passengers and luggage by public transport is determined on the basis of tariffs, which are approved in accordance with the legislative acts on transport.
3. Works and services, that are not covered by the tariffs and performed at the request of the cargo owners shall be paid by agreement of the parties.
4. Carrier has the right to retain transferred to him (her) to the carriage cargo and baggage due to him (her) in securing the freight and other charges for the carriage (Article 292 of the Code), unless it is provided otherwise by the legislation, contract of carriage, or follows from the obligation.
Article 698. Delivery Period Of Cargo, Passengers And (Or) Luggage
The carrier is obliged to deliver the cargo, passengers or luggage at the destination in time , which is defined by certain legislative acts on transportation and the rules of transportation in accordance with them. If the period of delivery of cargo, passengers or luggage is not set and the parties did not include this term in the contract, the delivery must be made within a reasonable period of time.
Article 699. The Right To Dispose of The Cargo
1. The shipper or owner of administrative documents for the cargo may require the carrier to stop transportation or return the cargo or to make another order. In this case, the carrier shall be entitled to demand payment for the already made shipment, as well as the compensation for expenses incurred in connection with the order made.
2. Shipper losses mentioned in the previous paragraph rights at the moment of handing over the goods to the consignee after arrival of the goods at destination.
3. When deviation of the consignee from the execution of obligations to obtain goods, requiring special storage conditions (perishable), in the absence of the shipping instructions of such cargo, and the storage of it, is impossible and may cause damage, the carrier is entitled to sell the goods.
The amount, received from the sale of goods, entered under the terms of the deposit in the name of the notary, net amount due to the carrier.
Footnote. Article 699 as amended by the Law of the Republic of Kazakhstan dated December 6, 2001 No. 260.
Article 700. Passenger Rights
Passengers have the right in the manner prescribed by the legislative acts of transport to 1) transport their children with them for free or other favorable terms; 2) to carry with a free hand luggage up to a certain limit; 3) take the luggage to be transported for a fee at the rate declared.
Article 701. Liability For Violation Of Obligations On Transportation
1. In the case of non-performance or improper performance of obligations on transportation, the parties shall bear the liability, established by this Code, the legislation on transport, other legislative acts, as well as the agreement between the parties.
2. The agreement of transport organizations with passengers and shippers (consignors) on the limitation or elimination of liability, established by legislative acts are not valid, unless the possibility of such agreements for carriage of goods provided by legislative acts on transport.
Article 702. Carrier’s Liability For Failure To Provide Vehicles And The Sender For The Failure Of Usage Of These Vehicles
1. Carrier for the failure of vehicles for the carriage of goods in accordance with the application (order) or other contract, and the sender for failure of loading or failure of use of vehicles for other reasons, shall be responsible by legislative acts, as well as the agreement of the parties.
2. The carrier and the consignor shall be released from liability in the event of failure or delay in delivery of vehicles or non-use of vehicles, if it occurred as a result of:
1) force majeure; 2) termination or limitation of the carriage of goods in certain areas, specified in the order
established by the legislative acts on transport; 3) in other cases stipulated by legislative acts.
Article 703. The Carrier’s Liability For Direct Mixed Traffic
The carriers in the direct mixed traffic are liable for loss, damage, injury, shortage of cargo to the consignor (consignee) jointly and severally.
The latest carrier bears the responsibility for the delay, unless he (she) proves that the failure was not caused by the carriers.
Article 704. Carrier’s Liability For The Delay Of Passengers Departure
1. For the delay in sending the vehicle, which is carrying passengers, or the delay such a vehicle in the destination (except for traffic in the urban and suburban areas) the carrier shall pay to the passenger a fine in the amount established by the legislation on transport, unless he (she) proves that the delay or arriving late occurred due to force majeure.
2. In case of passenger’s refusal of carriage due to the delay of departure of the vehicle, the carrier is obliged to return fare to the passenger in full amount and compensate to the passenger the losses incurred due to the delay.
Article 705. Carrier’s Liability For Loss, Shortage Or Damage (Or Injury) Of Cargo Or Luggage
1. The carrier provides cargo or luggage from the adoption of the carriage and delivery to the recipient, the authorized person or a person, authorized to receive luggage.
2. The carrier is liable for the loss of the cargo or luggage, unless he (she) proves that the loss, shortage or damage (injury) of cargo or luggage were not his (her) fault.
3. Damage caused during the carriage of goods or luggage, shall be compensated by the carrier:
1) in the event of loss or shortage of goods or luggage - in amount of lost or missing cargo or luggage;
2) in the case of damage (injury) of cargo or luggage - in the amount by which its price was reduced, and in case of impossibility of restoration of the damaged cargo or luggage in the amount of its value;
3) in the case of loss of cargo or luggage, surrendered to the carriage with the announcement of its value - in the amount of the declared value of the goods or luggage.
The value of the goods or luggage is determined based on the price, specified in the seller’ s account or under the contract, and in the absence of an account or specify the price in the contract - based on the price, which under comparable circumstances is usually charged for similar goods.
4. The carrier, along with the compensation of estimated damage, caused by the loss, shortage or damage (injury) of cargo or luggage, shall return to the sender (receiver) fare charged for the carriage of the lost, missing, corrupted or damaged cargo or luggage, if this fee is not included in the price of goods.
5. On the causes of the failure to preserve documents of cargo or luggage (commercial report, general form acts, etc.), made by the carrier unilaterally, subject to evaluation by the court in the event of a dispute, along with other documents certifying the circumstances that may give rise to liability of the carrier, shipper or recipient of cargo or luggage.
Article 706. Claims And Lawsuits On The Transport Of Goods
1. Prior to filing a claim against the carrier, arising from the carriage of goods, it is necessary to present a claim to the procedure established by legislative acts.
2. The limitation period for claims arising from the carriage of goods, shall be one year. 3. The provisions of this Article shall not apply to claims arising from the carriage of
passengers and luggage.
Article 707. Carrier’s Liability For Damage Harm To The Life Or Health Of The Passenger
Carrier's liability for obligations, arising from harm to life or health of the passenger is determined by the rules of Chapter 47 of this Code, unless the legislative acts or contract of carriage provides the increased liability of the carrier.
Chapter 35. Freight Forwarding
Article 708. CONTRACT of FREIGHT FORWARDING
1. Under the contract of freight forwarding, one party (freight forwarder) agrees for a fee and at the expense of the other party (the client-the shipper, the consignee or any other interested persons in the services of the freight forwarder) perform or arrange for the performance services, under the certain contract of forwarding related to the carriage of cargo, including a sign on behalf of the client, or on his (her) own behalf the contract of the carriage (contracts).
Additional services, by the contract of freight forwarding which can be provided such as the implementation of the necessary delivery operations, as obtaining required for export or import documents, execution of customs and other formalities, checking the quantity and condition of the goods, its loading and unloading, the payment of duties, taxes and imposed on the client, storing the goods, its recipient at the destination, as well as perform other operations and services.
With the consent of the client, the freight forwarder may him(her)self determine by what of transport to convey goods, taking into account the interests of the client, the level of tariffs and the terms of delivery.
2. In the part, which is not regulated by this chapter, and to the relations by the contract of freight forwarding shall be applied the provisions of Chapter 41 of this Code, if the freight forwarder under the contract, acts on behalf of the client, and the provisions of Chapter 43 of this Code - if he (she) acts on his (her) own behalf.
Footnote. Article 708 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 709. Form Of Contract
1. Forwarding contract is in writing form. 2. The client must issue a power of attorney to the freight forwarder, if it is necessary for
the performance of his (her) duties. Footnote. Article 709 as amended by the Law of the Republic of Kazakhstan dated
25.03.2011-IV No. 421 (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 710. Documents And Other Information Provided To The Forwarder
1. The client is obliged to provide the forwarder the documents and other information about the properties of the goods, the conditions of transportation, as well as other information necessary for the execution of the freight forwarder duties under the contract.
2. The freight forwarder is obliged to inform the client about the shortcomings of the received information and, in the case of incomplete information, request from the client the necessary additional information.
3. In case of failure by the client the necessary information, the freight forwarder may not proceed to the execution of the respective obligations before providing such information.
4. The client is responsible for damages, caused to the forwarding agent for breach of duty to provide the information, specified in paragraph 1 of this Article.
Footnote. Article 710 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 711. Performance Of The Freight Forwarder Duties By A Third Party
1. If the contract for freight forwarding is not provided the freight forwarder’s obligation to perform their duties in person, the freight forwarder has the right to engage other persons for the execution of his (her) duties.
2. Assignment of performance of an obligation to a third party shall not relieve the freight forwarder from the liability to the client for execution of the contract.
Article 712. The Right Of Retention
Forwarder has the right to retain the goods only in connection with non-payment of fees, which he (she) should receive for forwarding.
Article 713. Freight Forwarder’s Liability Under The Contract Of Freight Forwarding
1. Failure to perform or improper performance of obligations under the contract of freight forwarding, the freight forwarder is liable on the grounds and in the amount determined in accordance with the rules of Chapter 20 of this Code.
2. If the freight forwarder proves, that the breach of an obligation caused by the improper performance of the contract of carriage, the liability of the freight forwarder to the client is determined by the same rules, by which the corresponding carrier is responsible to the freight forwarder.
Footnote. Article 713 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 714. Unilateral Refusal To Perform A Contract Of Freight Forwarding
1. The client or the freight forwarder is entitled to refuse to perform the contract of freight forwarding, with noticing the other party within a reasonable period of time.
2. When a unilateral refusal to perform the contract, the party, who has declared the refusal shall compensate the other party the damages caused by the termination of the contract .
Footnote. Article 714 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011-IV No. 421 (shall be enforced upon expiry of ten calendar days after its first official publication).
Chapter 36. Loan
Article 715. LOAN AGREEMENT
1. Under the loan agreement, one party (the lender) transfers, and in the cases provided by this Code or the contract, shall transfer to the ownership of (economic management, operational management) another party (the borrower) money or things, with certain generic characteristics, and the borrower agrees to return the lender the same amount of money or an equal number of things of the same kind and quality.
2. Agreements, the performance of which involves transferring of money or things, with certain generic features may provide for the granting of the loan, including the advance payment, pre-payment, deferment and installment payment for goods (works and services), unless another is provided by legislative acts and not conflict with the relevant obligations.
3. Legal entities and citizens are prohibited from raising money in the form of a loan from the citizens as a business activity and such contracts are considered to be invalid from the moment of their conclusion.
This prohibition does not apply to cases, where the borrowers are banks, which are licensed by the authorized State agency to accept deposits, as well as on a pattern of money in exchange for securities, the issue of which are registered in the manner prescribed by the legislation.
Footnote. Article 715 as amended by the Law of the Republic of Kazakhstan dated July 10, 2003, No. 483 (shall be enforced from January 1, 2004).
Article 716. Form Of The Loan Agreement
1. The loan agreement must be concluded in a form, consistent with the rules of Articles 151-152 of this Code.
2. The loan agreement deemed to be concluded in the proper writing form with the presence of a bond, receipts of the borrower or other document certifying transfer to him (her) by the lender a certain amount or a certain number of things.
Article 717. Conclusion Of The Loan Agreement
Loan contract is considered to be concluded from the time of the transfer of money or things, unless another is provided by this Code or by agreement of the parties.
In cases, where the contract provides for the transfer of money or things in parts (in installments), it is concluded from the time of the transfer of the first part, unless a contract provides otherwise.
Article 718. Remuneration Under The Loan Agreement
1. Unless another is provided by legislative acts of the Republic of Kazakhstan or the contract, for the use of the subject of the loan, the borrower pays a fee the lender in the amount, defined by the contract.
2. Protection of the rights of borrowers of banks and organizations engaged in certains of banking operations, micro-credit organizations and credit unions is provided by setting limits on the size of the annual effective interest rate, including remuneration, all kinds of commissions and other charges collected by the lender in connection with the issuance and servicing of the loan, and calculated in the manner prescribed by the legislation of the Republic of Kazakhstan.
The maximum amount of annual effective interest rate is determined by the normative legal acts of the National Bank of the Republic of Kazakhstan, in coordination with the authorized state agency for regulation and supervision of financial market and financial organizations.
3. If the borrower under the loan agreement are transferred things, the remuneration is made in the case, where its size and shape (monetary or in-kind) provided by the contract.
4. The procedure and terms of remuneration are provided by the loan agreement. If the order and terms of payment of remuneration are not provided by the contract, it is
paid monthly. 5. If the borrower does not return the subject of the loan in time, the remuneration is paid
for the entire period of use of the subject of loan. Footnote. Article 718 is in the wording of the Law of the Republic of Kazakhstan dated
10.02.2011 No. 406-IV (shall be enforced upon expiry of ten calendar days after its first official publication), as amended by the Laws of the Republic of Kazakhstan dated 05.07.2012 No. 30-V (shall be enforced upon expiry of ten calendar days after its first official
publication), dated 26.11.2012 No. 57-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 719. Providing The Subject Of Loan
1. The subject of the loan is provided in the time, in the amount and on the terms specified in the agreement.
Unless another is provided by the contract, the subject of the loan is granted at the time of its transfer to the borrower or including appropriate money to his (her) bank account.
2. The borrower may refuse to receive the subject of the loan in whole or in part by notifying the lender in the contract term prior to its transferring, unless another is provided by legislation or contract.
3. When granting a loan for consumption, defined by generic characteristics, execution of the conditions on their number, range, completeness, quality, tare and (or) the packaging shall be in accordance with the rules of the contract for the sale of goods (Articles 406-492 of the Code), unless the contract provides otherwise.
Article 720. Special-Purpose Loan
1. Unless otherwise provided by the contract, the loan is expected to be without the special purpose, and the borrower uses the loan subject at his (her) discretion.
2. In cases, where the contract is concluded under the condition of the usage of the borrower the subject of the loan for certain purposes (special-purpose loan), the lender has the right to exercise control over the purpose use of the loan, and the borrower must provide the lender the possibility of such control.
3. Failure by the borrower of responsibilities for the purpose use of the subject of loan, as well as the obligations under paragraph 2 of this Article, the lender has the right to cancel the agreement of loan, accordingly failure to provide part of the subject of loan and demand the borrower to the early return of the loan, and interest on it.
Article 721. Ensuring The Performance Of Obligations Of The Borrower
1. Performance of obligations to return the subject of the loan and payment of compensation may be achieved in ways prescribed by this Code. In this case, the borrower must provide the lender the ability to control the security of the loan, unless another is provided by legislative acts or contract.
2. Failure by the borrower of responsibilities for the return of the object of the loan and the payment of compensation, as well as in case of loss the security or deterioration of the
conditions due to circumstances, for which the lender does not respond, the lender has the right to cancel the agreement of loan, respectively failure to provide part of the subject of the loan and demand the borrower early return of the loan subject and interest on it.
Article 722. Return Of The Subject Of The Loan
1. The borrower must return the subject of the loan in the manner and time provided by the contract.
Unless another is provided by the contract, the subject of the loan is considered to be returned at the time of its transferring to the lender or including the appropriate money in his ( her) bank account.
If the return period of the loan is not provided by the contract, it must be returned by the borrower within thirty days from the date of request of the lender about this.
The subject of the loan, which is granted without conditions of remuneration may be returned early. The subject of the loan granted to the payment of remuneration may be returned early from the consent of the lender or if the contracts provides so.
Remuneration on the loan can be repaid in advance at any time, unless another is provided by the contract.
2. With the consent of the lender, the borrower's obligations may be performed: under the agreement of money loan - taking into account the debt of things, determined by certain generic characteristics; under the agreement of things loan - making money for debt. The cost of these things is determined by agreement of the parties.
3. If the contract provides for the return of the loan in parts (installment), and when the borrower violates by the deadline for return of the next part of the subject of the loan, the lender has the right to demand early return of the entire subject of the loan along with remuneration due.
4. If the contract provides for the payment of interest on the loan in time, lead time for the return of the subject of loan, in violation of deadline for payment of compensation, the lender has the right to demand the borrower to the early return of the loan, together with the subject remuneration due.
Article 723. Term To Meet The Requirements For Early Return Of The Loan Subject
Upon presentation of the lender the requirements for early return of the loan subject on the grounds provided by paragraph 3 of Article 720, paragraph 2 of Article 721, paragraphs 3 and 4 of Article 722, a new maturity date of return the subject of the loan and the payment of the remuneration is calculated by the rule established by paragraph 1 of Article 722 of this Code.
Article 724. Contestation Of The Loan Agreement
1. The borrower has the right to challenge the loan agreement, proving that the subject of the loan (money or things) is not actually received by him (her) from the lender or obtained in a smaller size or quantity, than that specified in the contract.
2. In cases, where the loan agreement must be made in writing (Article 716 of this Code), its contestation by the testimony is not allowed, except where the contract was concluded under the influence of fraud, violence, threats, malicious agreement of agents of the parties or concurrence of difficult circumstances (paragraphs 9 and 10 of Article 159 of this Code). 725. Novation Of The Obligation In The Loan Agreement
1.By agreement of the parties, any obligation arising from transactions of purchase and sale, lease of the property or other grounds may be executed by the loan agreement.
2. Registration of obligation in the loan agreement is carried out in compliance with the requirements on novation (Article 372 of this Code) and is in the form, provided for the loan agreement (Article 716 of this Code).
Article 726. Contract Of State Loan
1. Under the contract of state loan the borrower is the state, the lender is a citizen or legal entity.
2. State loans are voluntary. 3. The State loan is concluded through the purchase by the lender of government bonds,
and other government securities (certified or uncertified), certifying the lender’s right to receive from the borrower granted him (her) a loan of money or, depending on the terms of the loan, other property equivalent, set remuneration or any other property rights within the time specified in the terms of issue of the loan.
4. The obligations arising from the contract of state loan, the borrower is responsible by the property of the State Treasury.
5. Features of the participation of the Republic of Kazakhstan on state loan may be established by legislative acts.
Article 727. Contract Of Bank Loan
1. Under the bank loan contract, the lender agrees to lend money to the borrower on the terms of payment, maturity and repayment.
1-1. Under the bank loan contract, in which the lender is the Islamic bank, the loan of money is based on the maturity and repayment and without charging fees for the use of money.
2. To the contract of bank loan shall apply the rules relating to the loan agreement with the specifications provided by Article 728 of this Code.
Footnote. Article 727 as amended by the Laws of the Republic of Kazakhstan dated 23.12.2005 No. 107 (the order of enforcement see Art. 2); dated 12.02.2009-IV No.133 (the order of enforcement see Art. 2).
Article 728. Features Of The Bank Loan Contract
The bank loan contract has the following features: 1) the lender is a bank or other legal entity, licensed from the authorized state body for
loans in cash; 2) the subject of the contract is money, that can be provided in the future. In the latter case
, the contract is deemed entered into force from the moment of its conclusion (paragraph 1 of Article 393 of this Code), unless this contract provides otherwise;
3) The contract shall be in writing. Failure to comply with the written form shall entail the invalidity of the contract of bank loan;
4) the contract cannot contain a condition, providing the right of bank or other legal entity , which is licensed by authorized State body on loans in cash, to unilaterally change the terms of the contract, unless another is provided by legislative acts of the Republic of Kazakhstan;
5) to the bank loan contract shall not apply the provisions of paragraph 2 of Article 722 of this Code, except as provided by the banking legislation of the Republic of Kazakhstan;
6) the provisions of paragraphs 3 and 4 of Article 722 of this Code shall apply to the contract of bank loan, if the borrower violates the deadline for returning the next part of the loan subject and (or) the payment of compensation, by more than forty calendar days.
Banks are prohibited from issuing loans, secured by shares, an issuer of which is the bank or loan for the purchase of these shares.
Footnote. Article 728 is in the wording of the Law of the Republic of Kazakhstan dated 10.02.2011 No. 406-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Chapter 37. Financing Under Cession of Monetary Claim (Factoring)
Article 729. Contract Of Financing Under Cession Of Monetary Claim (Factoring)
1. Under the contract of financing under cession of monetary claim, one party (financial agent) transfers or agrees to transfer the money to the other party (the client), and the client assigns or agrees to assign to the financial agent monetary claim against a third party, arising from the relationship between the client (creditor) with this third party (the debtor).
Monetary claim against the debtor may be assigned by the client to the financial agent in order to ensure the fulfillment of an obligation of the client before the financial agent.
2. Obligations of the financial agent under the contract of financing under cession of monetary claim may include conducting to the client accounting and production of documents
in respect of money claims (billing on monetary claims) that are the subject of concessions, as well as providing the client with other financial services related to these requirements.
3. General rules on assignment of claims, established by this Code (Articles 339-347 of this Code) shall apply to financing under cession of monetary claim, unless another is provided by this Chapter.
Article 730. Form Of Contract On The Financing Under Cession Of Monetary Claim
Contract of financing under cession of monetary claim must be made in writing in compliance with the provisions of Article 346 of this Code.
Article 731. Monetary Claim, Assigned In Order To Funding
1. The subject of the assignment, where funding is provided, may be a money claim, the payment maturity which has already arrived (the current requirement), and the right to receive the money that arising in the future (the future requirement).
Monetary claim which is the subject of assignment must be defined in the contract between the client and the financial agent, in a way that allows the identification of the existing monetary claim at the time of conclusion of the contract, and future demand - no later than at the time of its occurrence.
2. The current cash requirement is deemed to be transferred to the financial agent from the moment of conclusion of the contract, unless the contract provides otherwise.
When the assignment of future monetary claim, it is considered to be transferred to the financial agent, after arising the right to receive money from the debtor, which is the subject of assignment of a claim under the contract.
If the assignment of a monetary claim due to the certain event, it shall enter into force after the occurrence of the event. Additional registration of the assignment of a monetary claim in these cases is not required.
Article 732. Responsibility Of The Client To Financial Agent
1. Unless the contract provides otherwise, the client is liable to the financial agent for the invalidity of a monetary claim, which is the subject of the assignment.
2. A monetary claim which is the subject of the assignment shall be valid if the client has the right to transfer the monetary claim, and at the time of the assignment, he (she) is not aware of the circumstances, due to which the debtor has the right not to execute them.
3. The client is not liable for non-performance or improper performance by the debtor of the claim, which is the subject of the assignment, in case of presenting it by financial agent for execution, unless another is provided by the contract between the client and the financial agent
Article 733. Invalidity Of The Prohibition Of Assignment Of A Claim
Assignment of a monetary claim to the financial agent is valid, even if the client and his ( her) debtor have an agreement on its prohibition or restriction.
Article 734. Subsequent Assignment Of A Monetary Claim
Unless the contract of financing under cession of monetary claim provides otherwise, the subsequent assignment of a monetary claim by the financial agent shall not be allowed.
In cases, where the subsequent assignment of a monetary claim is allowed by the contract, to it accordingly shall apply the provisions of this Chapter.
Article 735. Performance Of Monetary Claim To The Financial Agent By The Debtor
1. Debtor is obliged to make payment to the financial agent under the condition that he ( she) received from the client or from the financial agent a written notice of the assignment of a monetary claim to that financial agent.
The notification shall be specifically identified enforceable monetary claim and specified the financial agent to whom payment shall be paid.
2. At the request of the debtor, the financial agent shall, within a reasonable period submit to the debtor the proof that the assignment of a monetary claim by the financial agent actually took place. If the financial agent does not fulfill this obligation, the debtor has the right to make payment to the client pursuant to the performance of his (her) obligation before the last.
3. Performance of a monetary claim by the debtor to the financial agent in accordance with the rules of the present Article, releases the debtor from the corresponding obligations to the client.
Article 736. The Right Of The Financial Agent On The Amounts Received From The Debtor
` 1. If, under the terms of the contract of financing under cession of monetary claim, the financing of the client is carried out by purchase by the financial agent, and the latter acquires the right to all the amounts, that he (she) shall receive from the debtor in response to a request , and the client is not liable to the financial agent for the fact that resulting by him (her) sum is less than the amount paid by the financial agent to the client.
2. If the assignment of a monetary claim to the financial agent exercised as a way to ensure the fulfillment of the client's obligations to the financial agent and contract of financing under cession of claims does not provide otherwise, the financial agent must provide a report to the client and send him (her) an amount, exceeding the amount of the
client’s obligation, secured by the assignment of claim. If the money, received by the financial agent from the debtor, was less than the amount of the client’s obligations to the financial agent, secured by assignment of the claim, the client is responsible for the remainder of the obligation.
Article 737. Counterclaims Of The Debtor
In the case of addressing the financial agent to the debtor with claim to effect the payment , the debtor is entitled, in accordance with Article 370 of this Code to present to set-off his ( her) cash requirements, based on the contract with the client, which were already at the debtor at the time, when they received notification of the assignment of claims to the financial agent.
The financial agent has the right to refuse from set-off, if the client has not informed him ( her) on the existence of obligations to the debtor.
Article 738. Return To The Debtor The Amounts, Received By Financial Agent
1. In the event of the client’s violation of his (her) obligations under the contract with the debtor, the latter may not require from the financial agent of the refund, which he (she) has already paid on the request passed to the agent, if the debtor is entitled to receive such amounts directly from the client.
2. The debtor, who has the right to receive directly from the client sums, paid to the financial agent as a result of the assignment the claim, nevertheless, has the right to demand the return of those sums from the financial agent, if it is proved that the latter has not fulfilled his (her) obligation to the client to exercise its financing under cession of claim or has made such financing, knowing the client’s violation the obligations to the debtor, to whom applies financing associated with the assignment of the claim.
Article 738-1. Assignment Of A Monetary Claim In Project Finance And Securitization
Features of financing under cession of monetary claim in project finance and securitization established by legislation of the Republic of Kazakhstan on project finance and securitization. The provisions of this chapter shall apply to the transactions of project finance and securitization, unless another is provided by the legislative act of the Republic of Kazakhstan on project finance and securitization.
Footnote. Article 738-1 is in the wording of the Law of the Republic of Kazakhstan dated 12.01.2012 No. 539-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Chapter 38. Banking service Paragraph 1. General provisions
Article 739. Banking Services Contract
1. Under the banking services contract, one party (the bank) undertakes, on behalf of the other party (the client) to provide banking services, and the client agrees to pay for these services, unless another is provided by the contract.
2. Banking services contract may be: 1) a bank account agreement; 2) an agreement to transfer money; 3) bank deposit agreement; 4) others of contracts, provided by legislation or agreement of the parties. 2-1. Bank accounts shall open at the conclusion of the agreement with the bank and the
agreement of the bank account (or) deposit. 3. The bank may use the money in the account, to ensure the client's right to freely
dispose of his (her) money. Footnote. Article 739 as amended by the Law of the Republic of Kazakhstan dated
05.07.2012 No. 30-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 740. Restrictions On Money Orders, In Banks
1. The money of legal entities (except banks, insurance (reinsurance) companies, pension funds, deprived by the authorized state agency of license and (or) is in the process of forced liquidation) and citizens in banks, may be seized only by the courts, investigation and inquiry, and executive proceeding agencies in the cases, which are under their production, as criminal and civil cases and cases of enforcement proceedings in the manner and on the grounds, prescribed by criminal and civil procedure legislation of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan on enforcement proceedings.
2. The arrest term of money of legal entities and citizens in banks may not exceed the deadline, set for the respective cases by criminal procedure and civil procedure legislation of the Republic of Kazakhstan.
3. Decisions of the organs of investigation and inquiry to seize the client’s money may be appealed to the Court in accordance with the legislative acts of the Republic of Kazakhstan.
4. The suspension of debit operations on the client's bank accounts are made in order and in cases stipulated by legislative acts of the Republic of Kazakhstan.
5. Disposal of public authorities, which are entitled to suspend the debit operations on the client's bank accounts, does not apply to the amount of money, which is seized by the decision of the authorized state bodies or officials on the arrest.
6. The decisions of the authorized state bodies or officials, who are entitled to seize client’ s money in his (her) bank accounts, made after the acceptance by the Bank to the execution the orders of the authorized State bodies on the suspension of debit operations, shall be executed after the cancellation of this order, with the exception of cases established by paragraph 7 of this Article.
7. Arrests imposed on the client's money in his (her) bank accounts, in order to secure the claim or the enforcement of executive documents are executed on a priority basis, with the exception of a seizure in order to meet the requirements of sub-paragraph 4 of paragraph 2 of Article 742 of this Code.
The fulfillment by the bank of earlier decisions of the authorized state bodies or officials on the arrest and the orders of authorized state bodies, who are entitled to suspend the debit operations on the client's bank accounts, shall be suspended within the amount of money, for which the arrest is effected in order to claim or enforcement documents.
When for the client's money in his (her) bank accounts, there are seizures for more than one arrest, in order to secure the claim or the enforcement documents, they shall be executed in the order of their acceptance by the bank.
Other decisions of the authorized state bodies or officials on the seizure and disposal of the authorized state bodies, who are entitled to suspend of debit operations on the client's bank accounts, are executed in the order of their acceptance by the bank, after the withdrawal or cancellation of the arrest, imposed in order to claim or enforcement documents.
Footnote. Article 740 is in the wording of the Law of the Republic of Kazakhstan dated 11.07.2009 No. 185 (shall be enforced from 30.08.2009); as amended by the Law of the Republic of Kazakhstan dated 10.02.2011 No.406-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 741. Withdrawal Of Money Without The Consent Of The Client
Withdrawal in banks and other organizations, engaged in certains of banking operations, money of legal entities and citizens without their consent can be made only on the basis of an enforceable court decision and in the cases stipulated by the Tax Code of the Republic of Kazakhstan, the customs legislation of the Customs Union and (or) of the Republic of Kazakhstan and the legislative acts of the Republic of Kazakhstan on pension and compulsory social insurance.
Footnote. Article 741 is in the wording of the Law of the Republic of Kazakhstan dated 22.06.2006, No. 147; as amended by the Law of the Republic of Kazakhstan dated 30.06.2010 No. 297-IV (shall be enforced from 01.07.2010).
Article 742. Order Of Priority Of The Withdrawal Of Client’s Money
1. If the client’s money in bank is sufficient to cover all claims, presented to the client, the withdrawal can be made in the order of receipt of the client or other persons orders (calendar order), unless another is provided by legislation.
2. If the client’s money in deposits is not sufficient to cover the next claim, presented to the client, the Bank accumulates received in favor of the client money, the amount of which is sufficient to meet this requirement, except for the cases stipulated by legislative acts of the Republic of Kazakhstan. Upon presentation to the client several requirements, the bank shall produce the withdrawal of client’s money in the following order:
1) primarily by withdrawal of money on executive documents, providing for the satisfaction of claims for damage caused to life and health, as well as claims for alimony;
2) in the second stage is withdrawal of money on executive documents, providing for the withdrawal of money to settle the payments of severance benefits and wages of persons, working under an employment contract, remuneration to the author's contract, the client’s obligations to transfer mandatory pension contributions to pension funds and social deductions to the state social insurance fund;
3) in the third stage is withdrawal of money for the client’s obligations to the budget; 4) in the fourth stage is the removal of money on executive documents, providing the
satisfaction of other monetary claims; 5) in the fifth stage is withdrawal of money to meet other requirements, presented to the
client in the calendar order. Withdrawal of money from the bank to the requirements, relating to the same queue, is
made in time of sequence receipt of the relevant documents. 3. Upon liquidation of the legal entity, that is the client satisfaction of creditors' claims are
made in the order provided in Article 51 of this Code. Footnote. Article 742 as amended by the Laws of the Republic of Kazakhstan dated
March 29, 2000 No. 42; dated March 13, 2003 No. 394; by the Law of the Republic of Kazakhstan dated July 9, 2003, No. 482; dated April 8, 2004 No. 542 (shall be enforced from January 1, 2005); dated May 15, 2007 No. 253.
Article 743. Banking Services To The Organizations, Performing Certains Of Banking Operations
Certain banking services may provide organizations, engaged in certains of banking operations.
Provision of certains of banking services by these organizations is carried out in accordance with the procedure established by this Code and legislative acts of the Republic of Kazakhstan.
Footnote. Article 743 amended by the Law of the Republic of Kazakhstan dated December 23, 2005 No. 107 (the order of enforcement see Art. 2 of the Law No. 107).
Article 744. Payment For Bank Services
The client pays for bank services, provided by the contract of banking services, on the terms and in the manner prescribed by the contract.
Article 745. Bank Secrecy
Bank guarantees the confidentiality of bank secrecy. The list of information, constituting the bank secrecy and the grounds of its issuance shall
be determined by the legislative acts regulating banking activity.
Article 746. Liability For Violation Of The Terms Of Banking Client Service
For violation of banking clients service, banks and organizations engaged in certains of banking operations, are responsible within the limits established by the legislative acts of the Republic of Kazakhstan regulating banking activities and contracts of banking services.
Footnote. Article 746 is in the wording of the Law of the Republic of Kazakhstan dated March 29, 2000 No. 42.
Paragraph 2. Bank account
Article 747. Bank Account Agreement
1. According to the bank account agreement, one party (the bank) agrees to take the money, received in favor of the other party (the client), to perform the client's orders to transfer (grant) to the client or to third parties, the relevant sums of money and provide other services provided by the bank account agreement.
Under the bank account agreement, to the client or to the person specified by him (her), for the purpose of accounting the client’s money, in the Bank is assigned a unique identification code of the client, on the terms agreed by the parties. The order of assignment, cancellation of individual identification code of the client, the bank accounting of the client’s money is determined by the banking legislation.
2. Legal entities and citizens independently choose banks for service and have the right to conclude the contracts of bank account, with either one or several banks.
3. Bank account agreement is unlimited, unless another is stipulated by legislation or agreement of the parties.
Footnote. Article 747 as amended by the Law of the Republic of Kazakhstan dated November 29, 1999 No. 486.
Article 748. The Form Of Bank Account Agreement
1. Bank account agreement must be in written form. 2. Failure to comply with the written form of bank account agreement shall entail the
invalidity of the contract.
Article 749. Disposal Of The Client’s Money
1. Bank withdrawals the client’s money in the bank, by the order of the client, unless another is provided by legislation or bank account agreement.
The bank is not entitled to determine and control the direction of using the client’s money and install other restrictions on his (her) right to manage the money on his (her) own, that are not established by the legislation, unless another is provided by legislation or bank account agreement.
2. If the money had been made by a citizen, the right to dispose of the money in the bank, uses either the citizen, or the person to whom he (she) has entrusted this right.
If the money had been made by a legal entity, the right to dispose of the money in the bank, uses the head of the legal entity and (or) any other person, autorized by him (her).
3. Rights of persons, who are exercising on behalf of a client order, the management of the money in the bank, confirms by the client through providing the bank the documents, required by legislation and contract.
4. By the bank account agreement must be set the procedure for disposal of the money in the bank. Requirements for this procedure are established by the legislative acts regulating banking activity.
Article 750. Operations, Performed By The Bank Under The Bank Account Agreement
1.In accordance with the bank account agreement, the bank shall: 1) ensure the availability of money upon presentation of the client’s requirements; 2) take the money, received for the benefit of the client; 3) carry out the client’s order to transfer the money for the benefit of third parties; 4) execute the orders of the third parties to withdraw money of the client, if it is stipulated
by legislative acts of the Republic of Kazakhstan and (or) the bank account agreement; 5) receive from the client and the issuance to him (her) the cash money in the manner
prescribed by the bank account agreement; 6) provide upon request of the client, the information on the amount of money in the bank
and the transactions, made in the manner provided by the contract; 7) perform other banking services to the client, provided by the contract, legislation and
applicable in the banking business practices. 2. The Bank is obliged to accept the money, received in favor of the client, as well as the
seizure or the issuance of money of the client, with the reflection of such operations on his (
her) individual identification code no later than the day following the day of receipt to the bank an appropriate entry, unless other terms are provided by legislative acts and published in accordance with them, regulations of the National Bank of the Republic of Kazakhstan.
Footnote. Article 750 as amended by the Law of the Republic of Kazakhstan dated 11.07.2009 No. 185 (shall be enforced from 30.08.2009).
Article 751. Remuneration For The Use Of Money
For the use of funds in the bank, the bank shall pay remuneration in the amount and manner determined by the contract.
Footnote. Article 751 as amended by the Law of the Republic of Kazakhstan dated November 29, 1999 No. 486.
Article 752. Termination Of The Bank Account Agreement
1. Bank account agreement is terminated at the request of the client at any time, unless another is provided by law or contract.
2. Termination of the bank account agreement is grounds for cancellation of the individual identification code of the client.
3. Money, left in the bank, is issued to the client or by his (her) instructions translated ( removed) in favor of third parties
Article 753. Bank Accounts Of Bank
The provisions of this Chapter shall apply to the bank accounts of banks, unless otherwise stipulated by the legislative acts or adopted in accordance with the regulations of the National Bank of Kazakhstan.
Paragraph 3. Money transfer
Article 754. Contract On The Transfer Of Money
1. Under the contract on the transfer of money, one party (the bank) undertakes, on behalf of the other party (the client) to transfer the money to a third party, without assigning an individual identification code to the client.
2. The order of the bank to transfer money without assigning to the client an individual identification code is established by legislative acts that regulate banking activity.
Article 755. Conclusion Of Contracts On The Transfer Of Money
Contracts on the transfer of money without opening a bank account is concluded, if the Bank adopts the client's order at the time of his (her) request to provide him (her) such banking services, unless another is stipulated by legislative acts regulating banking activity.
Paragraph 4. Bank deposit
Article 756. Bank Deposit Agreement
Under the bank deposit agreement, one party (the bank) agrees to accept from the other party (investor) money (deposit), to pay for them interest in the amount and manner provided by the bank deposit agreement, and return the deposit on the conditions and in the manner provided for the contribution of this by legislation and contract.
For each of thes of deposits, banks in order to take into account the money of a client, assign to him (her) an individual identification code. The order of assignment, cancellation of individual identification code, bank accounting of the client’s money is determined by the banking legislation of the Republic of Kazakhstan.
Features of bank deposits can be established by legislative acts of the Republic of Kazakhstan, regulating the banking activity.
Footnote. Article 756 as amended by the Laws of the Republic of Kazakhstan dated 09.07.2003 No. 482; dated 12.02.2009 No. 133-IV (the order of enforcement see Art. 2).
Article 757.s Of Bank Deposits
1. Depending on the conditions of return, the deposits areified into the followings: 1) demand deposit; 2) time deposit; 3) conditional deposit. 2. Demand deposit is refundable, in whole or in part, at the first request of the depositor. Time deposit is made for a certain period.
Conditional deposit is made to the occurrence of certain circumstances by the bank deposit agreement.
3. In cases, where the time deposit is requested by the depositor before the deadline, and the conditional deposit - until the occurrence of certain circumstances by the agreement of bank deposit, the remuneration is payable in the amount established by the deposit before the demand, unless another is provided by the bank deposit agreement.
Article 758. Form Of A Bank Deposit Agreement
1. Bank deposit agreements must be concluded in written form, meeting the requirements established by legislative acts regulations of the National Bank of the Republic of Kazakhstan and used in banking practice business customs.
2. At the request of the depositor, the document, identifying the made contributions can be filled either in his (her) name or in the name of a certain third party.
3. Failure to comply with the written form of the bank deposit agreement shall entail the invalidity of the contract.
Footnote. Article 758 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007, No. 225 (shall be enforced from the day of its official publication).
Article 759. Term Of The Bank Deposit Agreement
1. Bank deposit agreement is concluded with the receipt of the deposit to the Bank. 2. Bank demand deposit agreement is indefinite. 3. If, the depositor does not claim the time deposit amount, after its expiration, and the
amount of conditional deposit, after the occurrence of the circumstances, with which the bank deposit agreement binds the refund of deposit, the bank deposit agreement is extended for the terms of the demand deposits, unless otherwise provided by the contract.
Article 760. Remuneration Under The Agreement Of Bank Deposit
1. The bank shall pay to the depositor remuneration in the amount of the contribution, which is determined by the bank deposit agreement.
2. The bank is not entitled to change the remuneration on deposits unilaterally, except in cases of extension of the deposit term, provided by the bank deposit agreement.
Footnote. Article 760 as amended by the Laws of the Republic of Kazakhstan dated 29.11.1999 No. 486; dated 10.02.2011 No. 406-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 761. Procedure For The Payment Of Remuneration On Bank Deposit Agreement
1. Remuneration under the bank deposit agreement is paid by the bank in the manner and amount established by the bank deposit agreement.
2. Unless otherwise provided by the bank deposit agreement, remuneration on bank deposit is paid to the depositor at his (her) request at the end of each quarter, separately from the amount of the deposit, and the amount of unclaimed interest in the period increases the amount of the deposit, for which remuneration is paid.
By return of the deposit to the depositor is paid all contributions due to him (her) at this point.
3. On demand deposits, the depositor is entitled to receive remuneration due to him (her) on the deposit, separately from the amount of the deposit.
On the time deposits, the depositor is also entitled to receive remuneration due to him (her ) on the deposit, separate from the amount of the deposit, before the expiration of its term, but , unless another is provided by the bank deposit agreement, the amount of remuneration is recalculated with respect to the amount, that is used by the bank for demand deposits. After the expiry of the deposit term , the depositor is entitled to receive remuneration due to him ( her) in full, regardless of whether he (she) seeks the contribution or not (paragraph 3 of Article 759 of this Code).
On conditional deposits, receipt by the depositor the remuneration due to him (her), separately from the amount of the deposit is made in the manner prescribed by the bank deposit agreement.
4. Remuneration is paid within the time and in the form provided for the return of the deposit (Article 765 of this Code).
5. With the full return of the deposit to the depositor is paid all contribution due to him ( her) at this point.
Article 762. Making Contributions
1. Unless otherwise provided by the bank deposit agreement, the depositors make contributions both in cash and by bank transfer.
2. On demand deposit, money can be made by depositor in individual contributions in any amount and frequency. The calculation of remuneration on the newly acquired amounts is made in relation to remuneration amount, which was used by the bank on the day of receipt of money.
In time deposits, as well as conditional deposits the money is made by the depositor in the form of a single payment, unless another is provided by the bank deposit agreement.
Article 763. Making Money Contributions To The Deposit By Third Parties
To the deposit is made money, received by the bank in the name of the depositor from the third parties, indicating the required information on his (her) individual identification code.
Article 764. Contributions In Favor Of Third Parties
1. Contributions can be made to the bank in the name of a certain third party. Specifying the name of the citizen (Article 15 of this Code) or the name of the legal entity
(Article 38 of this Code), in favor of which the contribution is made, is an essential condition of the bank deposit agreement.
Bank deposit agreement in favor of the citizen, who died at the time of conclusion of the contract or non-existent of the legal entity at this point, is not valid.
2. In the case of a written refusal of a third party from the rights of the depositor, the person, who has concluded the bank deposit agreement, can exercise the rights of the depositor, in respect of money contributed by him (her) to the deposit.
3. When making in favor of a third party the conditional deposit, he (she) is entitled to dispose them only under the contractual terms of the bank deposit agreement. Before the onset of these conditions, the third party may dispose of the contribution only by written permission of the persons, who made contributions.
The condition of the deposit shall be recorded in writing in the bank deposit agreement, and not to contradict the legislation and has no ambiguities that impede the issuance of deposit.
To obtain the conditional deposit, the third party shall submit to the bank documents, confirming compliance with the specified conditions.
The person, who has made a conditional contribution in favor of a third party, has the right to: change the set condition, in the event that a third person has not submitted a document, confirming this condition; dispose of the contribution in the event that a third party violates the conditions, specified when making the deposit, or his (her) death before the fulfillment of the conditions stipulated by the bank deposit agreement.
4. Rules on the contract in favor of a third person (Article 391 of this Code) shall apply to the bank deposit agreement in favor of a third party, unless it is contrary to the rules of this Article.
Article 765. Return Of Bank Deposits
1.Bank is obliged to issue a deposit or its part at the first request of the depositor: 1) on demand deposits - on receipt of the request of depositor; 2) on time deposits - on the due date, provided by the bank deposit agreement; 3) conditional deposits - the circumstances, by the occurrence of which the bank deposit
agreement binds the return of the deposit; 2. The depositor is entitled to early repayment of the time deposit. The bank is obliged to issue deposit or its part no later than five days from the moment of
receipt of the depositor’s request. 3. Under the conditional deposit, the depositor has the right to return the contribution,
before the occurrence of the circumstances with which the bank deposit agreement binds the return of the deposit. At the same time, the bank is obliged to issue deposit or its part within the period provided by paragraph 2 of this Article.
4. Regulation of the bank deposit agreement, on the refusal of the depositor, from the right to early receipt of time deposits, as well as a conditional deposit before the stipulated conditions, is invalid.
5. Contributions made in a foreign currency must be returned in the same currency, unless otherwise provided by legislative acts, the bank deposit agreement or supplementary agreement of the parties.
6. In the event of default of the bank the depositors’ claim on the return of deposit or its part within the time limits specified in paragraphs 2 and 3 of this Article, the payment of remuneration continues under the conditions stipulated in the bank deposit agreement.
6-1. The provisions of this Article shall not apply to contributions that are the subject of pledge.
7. Issuance of bank deposit may be suspended on the grounds and in the manner prescribed by the Law of the Republic of Kazakhstan "On counteraction of legalization ( laundering) of income proceeding from crime and financing of terrorism".
Footnote. Article 765 as amended by the Laws of the Republic of Kazakhstan dated 29.03.2000 No. 42; dated 28.08.2009 No. 192-IV (shall be enforced from 08.03. 2010); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication); dated 21.06.2012 No. 19-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 766. Ensuring The Return Of The Bank Deposit
The means and methods, that the Bank must be used to ensure the return of deposits, are determined by the laws, regulations of the National Bank of the Republic of Kazakhstan and the bank deposit agreement.
Article 767. Payment Of Bank Services For The Commission Of Operations On The Bank Deposit
The depositor pays for the services of the bank on the commission of operations on the bank deposit, in the manner prescribed by the contract.
Chapter 39. Storage Paragraph 1. General provisions on the storage
Article 768. Storage Agreement
1. Under the storage agreement, one party (the keeper) undertakes to keep the thing, transferred to him (her) by the other party (the depositor), and return this thing safe.
2. Storage agreement recognized as concluded from the moment the thing is deposited.
3. The provision of this chapter shall not apply to the protection of immovable property.
Article 769. Agreement For Taking The Item For Storage
1. The keeper, who storages items as a business activity, can take on under the contract obligation accept storage for items of the depositor and keep the depositor’s items in accordance with the provisions of this Chapter.
2. The keeper, who has assumed the obligation under the contract to take the thing for storage, may not require the transfer of this thing to him (her). However, the depositor, who does not transfer the deposited thing in the contract time, shall be liable to the keeper for the losses incurred in connection with the failed storage, unless otherwise provided by legislation or contract.
3. The depositor shall be exempt from liability for non-transference of the thing for storage, if he (she) refuses to accept the keeper’s services in a reasonable period of time.
4. Unless otherwise provided by the contract, the keeper is released from the obligation to take the thing for storage in cases, when thing is not transferred for storage in the contract term, and when this term is not defined - after thirty days from the day of conclusion of the contract.
Article 770. The Duty To Take The Thing For Storage
The keeper, who is responsible for storage due to his (her) business activity, is not entitled to refuse to accept things for storage, if technically feasible, unless it is otherwise provided by legislation. In such cases, storage contracts are recognized as public (Article 387 of this Code) .
Article 771. Keeping Things With Loss Of Identity
1. When storing items with without specific identities, the items, accepted for keeping can be mixed with the items of the same kind and quality of other depositors. The depositor shall be returned equal or agreed by the parties on the quantity of items, of the same kind and quality.
2. When storing items without specific identities, items should be separated from the items of the same kind and quality, if legislation or by agreement of the parties establishes this.
Article 772. Form Of Storage Agreement
1. A storage agreement must be in written form, except for putting things in the short-term storage in lockers, and dressing stations, airports, institutions, companies, theatres, museums,
stadiums, restaurants, etc. with the issuance by the keeper of the numbers, counters and other legitimizing marks.
2. The written form of contract is considered to be complied with, if the adoption of things in storage is certified by the keeper by issuing to the depositor secure receipts, receipts, certificates, a document signed by the keeper.
3. A storage agreement in the form of household services can be concluded orally. 4. In the event of a dispute over the identity of the thing, accepted for storage, and things
returned by the keeper, is allowed the testimony. 5. Delivery things for storage in an emergency (fire, flood, etc.), in the absence of a
written form of agreement may be proved by the testimony, regardless of the value of the deposited thing.
Article 773. Period Of Storage
1. If the thing is deposited on demand or without specifying the period, the keeper has the right after the normal retention period in these circumstances to require that the depositor takes their items back, but must give the depositor a reasonable period of time to collect their things.
2. The depositor is entitled at any time to demand his items from the keeper, even if the contract had provided a period of storage. However, in this case, the depositor shall reimburse the keeper losses due to the early termination of the obligation, unless the contract provides otherwise.
Article 774. Remuneration And Reimbursement Of Expenses Of The Keeper
1. The amount of remuneration to the keeper under the storage contract is determined by the agreement of parties. In the cases established by legislative acts, the amount of remuneration may be determined by the fees, rates, tariffs.
2. By agreement of the parties or legislation may be agreed the gratuitousness of storage. When gratuitous storage the depositor must reimburse the keeper necessary actual expenses to save things.
3. Unless another is provided by legislation or by agreement of the parties, the fee for storage shall be paid to the keeper at the end of the store, and if payment is provided by period - at the end of each period. If storage is terminated prior to the expiration of a term in the contract of storage, the keeper should be paid commensurate part of the remuneration.
4. If, at the expiration of the contract period, the stored item is not taken back by the depositor, he (she) is obliged to pay compensation to the keeper for further storage of item at the same rate.
5. Unless otherwise specified by the contract, the storage costs are included in the amount of remuneration. It is assumed, that the extraordinary expenses are not included in the amount of remuneration or to the costs, under the contract.
Article 775. Duties Of Keeper To Ensure The Safe Holding Of Items
1. The keeper shall take all the contractual and other necessary measures to ensure the safety of the items transferred to him. .
2. If the storage is free of charge, the keeper must take care of the items accepted as if they were his (her) own property.
3. Items must be returned in the same condition, in which it was accepted for storage, allowing for its natural deterioration or natural losses.
4. The keeper is not entitled to use the item, except when it is provided by the contract, and if the use of the thing is necessary to ensure its preservation.
5. Along with the return of the item, the keeper is obliged to transfer the fruits and revenues, received during its storage, unless otherwise provided by the contract.
Article 776. Change Of Conditions Of Storage
1. If it is necessary to change the conditions of items stored under the storage agreement, the keeper shall immediately notify the depositor of these changes and wait for his (her) response.
2. In the case, where there is a risk of loss or damage to the item, the keeper is obliged to change the contractual process and place of storage, without waiting for the depositor’s response to such a change (paragraph1 of this Article).
3. If the thing in storage has been damaging or any other circumstances, which do not ensure its safety, and action on part of the depositor cannot be expected, the keeper has the right to sell the item or part of it, for the reimbursement of his (her) own costs for storage and sale.
Article 777. Transfer Of The Item For Keeping To A Third Party
1. If the legislation or the contract provides otherwise, the keeper shall not, without the consent of the depositor to transfer the thing for storage to a third party, unless this is not needed for the interest of the depositor and the keeper is unable to obtain his (her) consent. On transfer of thing to a third party, the keeper shall immediately notify the depositor.
2. The keeper is responsible for the actions of a third party, to whom he (she) handed the items for storage.
Article 778. Keeper’s Responsibility For Failure To Store Things
The keeper is responsible for the loss, shortage or damage to the item accepted for storage . He (she) is exempt from liability, if he (she) proves that the loss, shortage or damage of things, had not happened by his (her) fault.
Article 779. Responsibility Of The Keeper-Entrepreneur
1. The person performing the storage due to his (her) entrepreneurial activity, shall be exempt from liability for failure to store things only in cases where the loss, shortage or damage of things was caused by force majeure, the properties of the item, or the intent or gross negligence of the depositor.
2. If at the expiry date of storage under the contract, or the period specified by the keeper in the manner prescribed in Article 773 of this Code, the thing will not be taken back by the depositor, the keeper is responsible for the loss, shortage or damage of this thing only if there is intent on his (her) part or gross negligence.
Article 780. The Amount Of Liability Of The Keeper
1. Damages caused to the depositor by the loss, shortage or damage of things compensate by the keeper in accordance with Article 350 of this Code, if the legislative acts or the contract provides otherwise.
2. If on transferring for storage was assessed the thing, specified in the contract or other written document, issued by the keeper, the keeper’s liability is determined based on the amount of the assessment.
3. In cases when due to inappropriate storage conditions, the losses inflicted on the depositor by loss, shortage or damage of items are compensated under the following terms:
1) for loss or shortage of items- equal to the cost of the lost or missing items; 2) for damage to items - the amount by which the cost has gone down.
4. If the damage, for which the keeper is responsible, the quality of the things have changed so much that it cannot be used for its original purpose, the depositor has the right to reject it and require the keeper to reimburse the cost of this thing, as well as compensation for other losses, unless another is provided by legislation or contract.
Article 781. Consequences Of Violation Of The Terms Of Getting Items
1. The depositor is obliged, within the period specified in Article 773 of this Code, to take back the deposited item.
2. When deviation of the depositor from obtaining his (her) items, the keeper is entitled after warning no less than a month to demand the sale of things, in the manner prescribed by the Civil Procedure Code of the Republic of Kazakhstan, unless otherwise provided for by legislation or contract.
3. The proceeds from the sale of things are transferred to the depositor, net of amounts due to the keeper.
Article 782. Compensation For Losses Caused To The Keeper
The depositor is obliged to compensate the keeper in the event that the nature of the item stored causes damage to the keeper’s property, if the keeper, taking the thing for storage, was not informed and had no reason to suspect this potential for damage .
Article 783. Application Of The General Provisions On The Storage For Its Individuals
General provisions on the storage apply for its individuals, unless the rules of certains of storage provided by Articles 784-802 of this Code and (or) other legislation provides otherwise.
Paragraph 2. Certains of storage
Article 784. Storage In A Pawn Shop
1. Agreement for the storage of items in a pawnshop is formalized by the issuance of the pawn shop a nominal deposit receipt.
2. The item which is deposited in a pawn shop is evaluated by the agreement of the parties , in accordance with the prices of items for this kind and quality, usually determined by the trade at the time and place of its acceptance for storage.
3. Pawn shop must insure to the benefit of the depositor, the adopted for storage thing in the full amount of its valuation, made in accordance with paragraph 2 of this Article.
Article 785. Unclaimed From The Pawnshop Thing
1. In the case of deviation of the depositor from getting back of thing, the pawnshop must keep it for three months. After this period, the unclaimed thing may be sold by the pawnshop in the manner prescribed by paragraph 2 of Article 781 of this Code.
2. The proceeds from the sale of thing, shall be retired the storage fee and other payments due to the pawnshop. The remaining amount is returned by the pawnshop to the owner of the deposit receipt by its presentation.
Article 786. Storage Of Valuables In The Bank
1. The bank may take for storage securities, precious metals, jewels and other valuables, as well as documents.
2. The contract for storing valuables in the bank is made by issuing of the bank to the depositor the named secure document, which shall be ground for the issuance of stored values to the depositor or his (her) representative.
3. The contract for storage valuables using a safe deposit box (safe boxes, a separate room for storage) may be concluded by the Bank action on the adoption of the values for storage and the issuance to the depositor the key for the safe, cards, identifying the depositor, other sign or a document, certifying the right of the bearer to access to the safe and getting values from it.
4. Unless otherwise provided by the contract, the depositor may at any time withdraw valuables from the safe, return them back, or work with stored documents. The bank has the right to register the obtaining and returning of values by the depositor.
5. Upon receipt of the depositor, including temporary, part of the values from the safe, the bank is responsible for the safety of the remaining values.
6. The rules established by this Article on safekeeping of valuables in the safe deposit box are not applied to cases, where a bank gives its safe (safe box, a separate room for storage) to another person for use under the terms of the tenancy.
Article 787. Storage In Luggage Lockers Of Transport Organizations
1. The transport organizations administer the luggage lockers and are obliged to store items of passengers and other citizens, regardless of their travel documents. The contracts for administering the storage in luggage lockers of transport organizations is recognized as public (Article 387 of this Code).
2. The confirmation of receipt of items for storage in the luggage lockers (except automatic) is issued to the depositor by a receipt or a numbered token. In the event of loss of receipt or token, items transferred for keeping in a luggage lockers are issued to the depositor on presentation of evidence, that the items under question belong to him (her).
3. The amount of the losses, incurred by the depositor as a result of loss, shortage or damage of things given in a luggage locker, shall be paid to the depositor in 24 hours, if at the time of an item for keeping, its assessment was made, or if the parties come to an agreement concerning the amount, which is reimbursed for losses.
4. Items can be put in luggage lockers for a period within the limits prescribed by special rules or by agreement of the parties. Items, which are not claimed within a specified time, a luggage locker must be stored for the next three months. After this period, unclaimed items can be sold and the proceeds from the sale of the amount are allocated in accordance with Article 781 of this Code.
Article 788. Storage In The Wardrobes Of Organizations
1. Storage in the wardrobes of organizations is offered free of charge, if fees for storage are not agreed at the time of the delivery thing for storage.
2. In confirmation of the receipt of things for storage in the wardrobe, the keeper gives to the depositor a token or other number sign, confirming acceptance of the thing for storage.
3. The item placed in storage in the wardrobe shall be delivered to the bearer of the token. In this case, the keeper is not obliged to check the authority of the bearer of token to receive the item. However, the keeper may delay the return of items to the bearer of token, if he (she) has doubts about the identity of the bearer of token.
4. The keeper may give a thing from the wardrobe, in the case where the depositor has lost a token, but the keeper has no doubt about the fact of putting things into the wardrobe or its possession to the depositor, and it is proved by the depositor.
Article 789. Storage In The Hotel
1. A hotel acts as a keeper and without special agreement for loss or damage to items except for money, currency values and other securities entered to the Hotel by the patron, except the cases, where the loss or damage occurred as a result of force majeure, the properties of items or the fault of the person, his (her) accompanying persons or his (her) visitors.
2. The hotel is responsible for the loss of money, currency values and other securities only on the condition that they have been accepted for storage.
3. The person, who is staying at the hotel, and noticing loss or damage to his (her) belongings, shall immediately inform the hotel. Otherwise, the hotel is exempt from the liability for failure to store items.
4. The hotel is not relieved from the liability for failure to store the items of its patrons, even if it makes the announcement that does not accept this responsibility.
5. The provisions of this Article shall also apply to storage in motels, rest houses, sanatoriums, hostels and other similar organizations, as well as organizations that have specially dedicated facilities for the storage of clothing, hats and other similar things of citizens, visiting the organization.
Article 790. Storage Of Items Of Disputed Ownership (Sequestration)
1. According to the agreement on sequestration, two or more persons between whom there is a dispute over who owns an item, shall transfer the item to a third person, who undertakes upon resolution of the dispute to return the item to the person, to whom it shall be awarded by the court or by agreement of all contracting parties (contractual sequestration).
2. A controversial item can be transferred for keeping in order of sequestration by the court (judicial sequestration).
The keeper of judicial sequestration can be a person appointed by the court and the person determined by mutual agreement of the disputing parties. In both cases, the consent of the keeper is required, unless otherwise provided by legislative acts.
3. For depositing by way of sequestration may be transferred both movable and immovable things.
Paragraph 3. Storage in the warehouse
Article 791. Warehouse
Goods warehouse is a commercial organization, performing storage of goods and providing storage services as a business.
Article 792. Public Warehouse
1. A warehouse is recognized as a public warehouse if, in accordance with legislative acts, it is notified to the warehouses, which can take the goods for storage from a limited number of individuals.
2. Contract on storage in the warehouse, concluded with public warehouse recognizes a public contract (Article 387 of this Code).
Article 793. Duties Of The Warehouse
1. A warehouse shall comply with the conditions (mode) of storage, set in the standards, technical conditions, process instructions, storage instructions, rules for storage of certains of goods, and other mandatory provisions entailed in the specific regulations relating to warehouses.
2. Warehouse shall make at its own expense, inspection of the goods at the reception for safekeeping.
3. Warehouse must provide the opportunity to inspect goods or samples, if storage is done of items without specific identities, sampling and taking the measures, necessary to ensure the safety of goods.
4. Where to ensure the safety of goods urgently needed to change the conditions of storage, warehouse may take the necessary urgent measures on its own. It shall notify the owner on action taken.
5. If the goods damaged, warehouse shall immediately draw up an act and notify the owner at the address, stated by him (her) to the warehouse.
Article 794. Requirements Of The Owner To The Warehouse
Unless otherwise provided by the contract, the owner must declare the warehouse of loss, shortage or damage as a result of improper storage, when receiving the goods from a warehouse, but about hidden damage - within the normal time required to detect them. If damage and shortage of goods in an appropriate time is not announced to the warehouse, the warehouse is not liable for damages, except in cases, where losses are caused due to its intent or gross negligence.
Article 795. Reimbursement Of The Warehouse On Storage
Warehouse has the right to compensation under the contract or by established legislative acts of cost rates on additional transactions in the interest of the depositor (insurance of goods , loading and unloading, payment of customs duties, etc.). This right is guaranteed by the right of the workhouse to hold the stored goods.
Article 796. Refusal Of Warehouse From The Contract Of Storage
Warehouse has the right to refuse to perform the contract in cases, where the depositor concealed the dangerous nature of the goods that threaten to substantial damage.
Article 797. Warehouse Documents
1. Warehouses may issue as a confirmation of acceptance of the goods for storage the following warehouse documents:
1) simple warehouse certificate; 2) dual warehouse certificate. 1-1. In cases, stipulated by legislative acts of the Republic of Kazakhstan, the warehouses
are obliged to give double or simple warehouse certificates as a confirmation of acceptance of the goods for storage with loss of identity.
2. Double warehouse certificate, each part of it and a simple warehouse certificates are securities.
3. Double and simple warehouse certificates can be subjects of pledge. Footnote. Article 797 as amended by the Law of the Republic of Kazakhstan dated
January 12, 2007 No. 225 (shall be enforced from the day of its official publication).
Article 798. Simple Warehouse Certificate
1. Simple warehouse certificate is issued to the bearer. 2. Simple warehouse certificate must contain the information specified in sub-paragraphs
2), 3), and 5)-10) of paragraph 2 of Article 799 of this Code, and with indication that it was issued to bearer.
Article 799. Double Warehouse Certificate
1. A double warehouse certificate consists of warehouse certificate and pledge certificate ( warrant), which are identical in content and, if necessary, are separated one from another.
2. Every part of the double warehouse certificate shall contain: 1) the name of the corresponding part of the double warehouse certificate; 2) the name and address of the warehouse, accepting the goods for storage; 3) the current number of the warehouse certificate in the register of the warehouse; 4) the name of the organization or the citizen, from whom the goods received for storage,
as well as the location (address) of the owner; 5) the name and quantity of goods, the number of commercial sites; 6) the amount of the received goods, unless another is provided by legislative acts of the
Republic of Kazakhstan; 7) the period, for which the goods accepted for storage, if it is established; 8) tariffs and payment for storage; 9) date of issue of warehouse certificate; 10) authorized signature and seal of the warehouse. Legislative acts of the Republic of Kazakhstan may establish additional requirements to
the form and content of the double warehouse certificate. Footnote. Article 799 as amended by the Law of the Republic of Kazakhstan dated
January 12, 2007 No. 225 (shall be enforced from the day of its official publication).
Article 800. Rights Of The Holder Of Double Warehouse Certificate For The Goods
1. The holder of a double warehouse certificate shall be eligible to dispose the goods, stored in a warehouse in a full volume.
2. The holder of the warehouse certificate, separated from the pledge certificate is eligible to dispose the goods, but cannot take it from the warehouse before the repayment of the loan, issued on the pledge certificate. The holder of the warehouse certificate may transfer the ownership of warehoused goods, which is enabled by endorsement (endorsement) and delivery the document, but without transferring the goods.
3. A buyer, who has received by endorsement the warehouse certificate with an un-separated a pledge certificate, shall become the owner of the warehoused goods, which is free of pledge. When purchasing a warehouse certificate without a pledge certificate, it is estimated that the ownership of the goods burdened by the legal lien. Details of the terms of pledge (the amount and date of the establishment of a lien on goods) can be found in the register of the warehouse, which is open to interested visitors.
4. The holder of a warehouse certificate has a lien on the goods in the amount issued by this loan certificate and reward for it. On establishing a lien on the goods, in the warehouse certificate is made the mark about it.
5. The buyer or seller may free the goods from the pledge, by making the appropriate amount secured by the pledge, to the mortgagee (creditor) or warehouse, which shall transmit it to the rightful holder of the pledge certificate.
6. The holder of a pledge certificate in the event of dissatisfaction of his (her) claim, secured by the pledge within the period, shall be eligible to sell in the legal procedure the laid him (her) on the pledge certificate goods and cover his (her) claim prior to other creditors of the pledgor. With the proceeds failure, the holder of a pledge certificate may recover the half-received part from all endorsers, who are jointly and severally liable for the payment of requirements of the secured pledge certificate.
Footnote. Article 800 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the day of its official publication).
Article 801. Transfer Of Warehouse And Pledge Certificates
Warehouse certificate and pledge certificate may be transferred together or separately by endorsement (endorsement).
Article 802. Issuance Of The Goods On The Double Warehouse Certificate
1. The warehouse delivers goods to the holder of the warehouse and pledge certificates ( double warehouse certificate) in exchange for both of these certificates together.
To the holder of a warehouse certificate, who does not have a pledge certificate, but made sum of debt on it, the goods is issued by the warehouse in exchange for warehouse certificate and subject to the payment of the entire amount of the debt for pledge certificate.
2. The holder of warehouse and pledge certificates shall be eligible to demand delivery by installments. While in exchange for initial certificate, he (she) is issued new certificates for goods, which is left in a warehouse.
3. Warehouse, in violation of the requirements of this Article, delivered goods to the holder of a warehouse certificate, who does not have a pledge certificate and is not moving the sum of debt on it, shall be liable to the holder of the pledge certificate for payment of all outstanding amounts on it.
Chapter 40. Insurance
Article 803. Insurance Contract
1. Under an insurance contract, one party (the insured) undertakes to pay the insurance premium, and the other party (the insurer) agrees to carry out the insurance payment in the insurance case to the insured person, or other person in whose favor the insurance contract is signed (beneficiary) within a certain contract amount (sum insured).
Legislative acts of the Republic of Kazakhstan may establish the cases of other payment on the terms and conditions stipulated in the insurance contract.
2. The insurance shall be provided on the basis of the insurance contract. Footnote. Article 803 as amended by the Law of the Republic of Kazakhstan dated
18.12.2000 No. 128; dated 05.07.2006 No. 164 (the order of enforcement see Art. 2); dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 804. Insurance Relations Regulated By This Code
This Code regulates the relationship between the insurer and the insured person, as well as their relationship with the insured persons and the beneficiaries that arise from the process of concluding and execution of the insurance contract.
Article 805. Forms Of Insurance
1. Forms of insurance are: 1) according to the degree of obligation - voluntary and compulsory; 2) the object of insurance - personal and property; 3) on the basis of insurance payments - funded and unfunded. 2. For licensing of insurance activity, the legislative acts may provide a differentification. Footnote. Article 805 is in the wording of the Law of the Republic of Kazakhstan dated
December 18, 2000 No. 128.
Article 806. Compulsory And Voluntary Insurance
1. Compulsory insurance - the insurance, carried by the requirements of legislation, the terms of which shall be determined by agreement of the parties, unless another is stipulated by legislation, governing the compulsory insurance.
2. (Is excluded - dated May 7, 2007, No. 244) 3. The obligation to insure his (her) life or health, may not be imposed to a citizen by
legislative acts or contract. Compulsory insurance is carried out by the insured person. 4. When compulsory insurance, the insured person shall conclude a contract with the
insurer, on terms determined by agreement of the parties, unless another is stipulated by legislative acts, regulating this of insurance.
5. A compulsory insurance contract shall be entered into only with an insurer, licensed to carry out this of insurance. At the conclusion of the compulsory insurance contract, the terms
and conditions are set by the legislative acts, regulating compulsory insurance, and these terms and conditions obligatory for the named insurer, unless they are otherwise provided in these acts.
6. Voluntary insurance is carried out by the will of the parties. Types, conditions and procedure for voluntary insurance shall be determined by the
agreement of the parties. Footnote. Article 806 as amended by the Law of the Republic of Kazakhstan dated May 7,
2007 No. 244.
Article 807. Insurance Object
1. The objects of property and personal insurance may be any property interests of citizens and legal entities, including those associated with:
1) survival of people under a certain age or the period specified in the insurance contract, death, the onset of certain events in the lives of citizens;
2) harm to life and health of citizens as a result of accidents and other events; 3) possession, use and disposal of property;
4) the duty to compensate for harm caused to other persons, including breach of the contract (liabilities).
The object of insurance on compulsory insurance is determined by legislative acts. 2. The illegal property interests of the insured person shall not be insured. 3. Insurance contracts, which objects are property interests, provided in paragraph 2 of
this Article, shall be invalid. Footnote. Article 807 as amended by the Laws of the Republic of Kazakhstan dated
February 20, 2006, No. 128 (the order of enforcement see Art. 2); dated May 7, 2007, No. 244.
Article 808. The Consequences Of Breaking The Rules Of The Compulsory Insurance
1. The person to whom, in accordance with legislative acts must be made compulsory insurance, may, if he (she) knew that it was not insured, require in a judicial proceeding the insurance against the person, who is charged with this duty.
2. If the person, who is charged with the duty of insurance, has not exercised it or contracted insurance under the conditions, which are worsening situation of the insured in comparison with, those provided by legislative acts, this person upon occurrence of an insured event shall be liable to the insured person on the same conditions as to who would be carried out for the insurance payment related with proper insurance.
3. The person, who is obligated under the legislative acts to act as an insured person, is eligible to demand in a judicial proceeding concussion of the insurer, who is liable in
accordance with paragraph 5 of Article 806 of this Code to maintain the insurance, but deviates from it, to contract of insurance under the conditions stipulated by legislative acts.
4. Evasion of insurance of the person, obliged to implement it as an insured person and the insurance company, obliged to act as an insurer, shall be liable for prosecution under the legislative acts.
Footnote. Article 808 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 809. Personal And Property Insurance
1. Personal insurance includes life insurance, health insurance, disability insurance and other forms of insurance related to the condition of the citizens.
Under a personal insurance contract may be insured, the insured person and other persons named in the contract (the insured).
2. Property insurance is insurance of property and related property interests. 3. Property insurance against the risk of loss (death), shortage or damage of property and
other property rights and benefits provided in Article 115 of this Code. 4. If a property insurance contract is concluded in the absence of the insured person or the
beneficiary, the interest in the preservation of the insured property is not valid. 5. Civil liability insurances covers the liability risk for obligations, which are arising from
harm to life, health and property of third persons, as well as liability for obligations arising from contracts.
Footnote. Article 809 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128; dated February 20, 2006, No. 128 (the order of enforcement see Art. 2).
Article 809-1. Endowment Insurance
1. Endowment insurance is insurance, that provides insurance payments upon occurrence of an insured event, including expiration of the insurance contract period or an event provided in the contract, depending on which one comes first.
2. Unfunded insurance is insurance that provides the insurance payments only upon occurrence of an insured event, having the features of probability and randomness of its occurrence.
3. Annuity insurance contract - the contract of insurance, under which the insurer is obliged to make an insurance payment in the form of periodic payments to a beneficiary during the contract period.
4. Endowment insurance contracts may be concluded exclusively for personal insurance. 5. Annuity insurance contract refers to contracts of insurance saving.
Footnote. Is supplemented with the Article 809-1 by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128; as amended dated February 20, 2006, No. 128 (the order of enforcement see Art. 2).
Article 810. Business Risk Insurance
Footnote. Article is excluded by the Law of the Republic of Kazakhstan dated February 20, 2006 No. 128 (the order of enforcement see Art. 2).
Article 811. Insurance Of Civil Liability For Injury
Footnote. Article is excluded by the Law of the Republic of Kazakhstan dated February 20, 2006 No. 128 (the order of enforcement see Art. 2).
Article 812. Insurance Of Civil Liability Under The Contract
Footnote. Article is excluded by the Law of the Republic of Kazakhstan dated February 20, 2006 No. 128 (the order of enforcement see Art. 2).
Article 813. Insured Person
1. An insured person is the person, who has entered into an insurance contract with the insurer.
2. Insured persons may be legal entities and citizens. 3. The insured person is free to choose the insurer as voluntary and mandatory forms for
insurance. Footnote. Article 813 as amended by the Law of the Republic of Kazakhstan dated
December 18, 2000 No. 128.
Article 814. Insurer
The insurer is a person, performing insurance, who is liable upon occurrence of an insured event to make insurance payment to the insured person or other person in whose favor the insurance contract is signed (beneficiary), within a certain contract amount (sum insured).
The insurer may only be a legal entity, registered as an insurance company and licensed to carry on insurance business of any mutual insurance in accordance with the legislation of the Republic of Kazakhstan on mutual insurance.
Footnote. Article 814 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128; dated July 5, 2006, No. 164 (the order of enforcement see Art. 2 ).
Article 815. Insured
1. The insured is the person in respect of which the insurance is made. Unless otherwise established by contract, the insured person shall also be the insured.
2. Legislative acts may obligate the insured person to implement a third party insurance. In case of voluntary insurance, the insured person in the insurance contract may identify a third party as the insured. In these cases, the object of the insurance shall be either the identity of the insured and its related interests (personal insurance of the insured), or the property and property interests of the insured (property insurance of the insured).
When insuring property, the insured, who is not the insured person must have an interest in maintaining the property.
3. If the terms of the contract for the insured, who is not the insured person, assigned the responsibilities, the insured person must obtain the consent of the insured to sign the contract.
Under compulsory insurance, as well as group impersonal insurance, the consent of a third party to the contract, where it is identified as the insured, is not required.
In case of voluntary insurance, the objection of the person regarding his (her) personal or property insurance, entails the impossibility of the contract, and if it was already concluded - termination of the contract.
4.In the event, when the insured has a duty on insurance of a third party, the third party shall be entitled to require the insured a report on the implementation of this obligation, and in cases stipulated by legislative acts, to obtain the document, indicating that it is insured.
In the event of failure or improper performance of his (her) duties by the insured, on the insurance of a third party, the latter may apply the measures provided in paragraphs 1 and 2 of Article 808 of this Code.
5. If the insured is a minority age citizen, his (her) rights shall be implemented in accordance with Articles 22-24 of this Code.
6. Contract, in favor of the insured does not release the insurer from duties under the contract. Insurance of a third party shall be at the expense of the insured.
7. If the insured has refused to receive insurance payments, due to him (her) under the contract, the right to receive the insurance proceeds transfers to the insured person.
8. In the case of death of the insured, who is not the insured person, and in respect of which, concluded the contract of personal insurance, is not provided such a case, this contract is terminated, if the legislation or the contract does not provide replacement of the insured.
If the death of the insured was an insured event, which is provided by the insurance contract, this contract is executed under the conditions of it.
In case of death of the insured, who is not the insured person, and in respect of which concluded the contract of property insurance, the rights and obligations of the insured, with
the consent of the insured shall transfer to the heirs of the property and property rights of the insured, which have been the subject of the insurance, if the legislative acts or the contract provides another.
If the insured person does not agree to replace the deceased insured or the heirs of the insured does not agree to accept the rights and obligations, arising from the insurance contract , this contract shall be terminated.
9. The contract of insurance in favor of a third party (the insured), subject to the provisions of Article 391 of this Code, to the extent that they are not inconsistent with the provisions of this Article.
Footnote. Article 815 as amended by the Laws of the Republic of Kazakhstan dated December 18, 2000 No. 128, dated May 7, 2007 No. 244.
Article 816. Beneficiary
1. The beneficiary is the person, who in accordance with insurance contract or legislation on compulsory insurance is a recipient of the insurance payment.
The beneficiary can be a legal entity or a citizen. The beneficiary may be imposed both on the personal and property insurance. On compulsory insurance, the beneficiary is determined by the legislative acts regulating
this of insurance, on voluntary the beneficiary is appointed by the insurer. 2. Unless otherwise provided by legislative acts on compulsory insurance or a contract of
voluntary insurance, the beneficiary shall be the insured. If the insured person is not insured, the beneficiary has to be the insured, or he (she) is
assigned with the written consent of the insured. If the beneficiary is not designated in the insurance contract, he (she) assumed to be the
insured. 3. (Is excluded - dated February 20, 2006 No. 128). 4. (Is excluded - dated 18.12.2000 No. 128) 5. If the insured is also a beneficiary, the beneficiary is subject to the provisions provided
by Article 815 of this Code. 6. In the event of the death of the beneficiary, who is not the insured, or his (her) waiver
from the rights of beneficiary, the rights of the latter shall pass to the insurer. In the event of the death of the beneficiary, who is the insured, shall apply the
consequences provided by paragraph 8 of Article 815 of this Code. 7. If the death of the insured, is the case, which is provided by the insurance contract, in
the event that such insured is not the insured person or is the insured, but the contract is not designated a beneficiary, the beneficiaries are recognized as heirs of the insured.
8. In the insurance case, the beneficiary is entitled to bring directly to the insurer the claim for his (her) insurance payment under the insurance contract.
9. Contract in favor of a beneficiary, does not release the insurer of duties under this contract.
Footnote. Article 816 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 817. Insured Event
1. An Insured event is an event in the occurrence of which the insurance contract provides the insurance payment.
2.s of insurance events for compulsory insurance are determined by legislative acts on compulsory insurance, and for voluntary insurance is by the agreement of the parties.
3. The event, considered as an insured event must be characteristics by of randomness and probability of its occurrence, with the exception of events, that can be provided by a contract of endowment insurance.
4. Proof of the insured event, as well as damages caused to them must be demonstrated by the insured or by the beneficiary.
Footnote. Article 817 as amended by the Laws of the Republic of Kazakhstan dated 18.12.2000 No. 128, dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 818. Insurance Premium
1. Insurance premium is the amount of money, which the insured shall pay to the insurer for the latter’s obligation to make insurance payment to the insured person (beneficiary), at the amount specified in the insurance contract.
Insurance premiums, received by the insurer from the insured person, belong to him (her) by the right of ownership.
2. Insurance premiums are set by contract. On compulsorys of insurance, they are established by legislative acts.
The procedure and terms of payment of the insurance premiums are determined by the contract. On the compulsory insurance, they may be determined by legislation.
3. The parties in determining the amount of the payable premiums under the insurance contract shall apply the rate developed by the insurer that determine insurances premium rate, charged to the unit with the sum insured, taking into account the object and nature of insurance risk.
4. The insurance contract may provide the payment of the insurance premium by installments in the form of periodic premiums.
5. If the insurance contract provides the payment of the insurance premium by installments, the contract may determine the consequences of failure to pay the next premium on time, including the early termination of the contract.
6. If the insured event occurs prior to the payment of a specific insurance premium, and the payment is overdue, the insurer has the right in determining the amount of insurance payments to set off the amount of the overdue premium.
Footnote. Article 818 as amended by the Laws of the Republic of Kazakhstan dated December 18, 2000 No. 128, dated February 20, 2006 No. 128 (the order of enforcement see Article 2), dated May 7, 2007 No. 244.
Article 819. Insurance Amount
1. The insurance amount is the amount of money, for which the insured object is insured and represents the maximum amount of liability of the insurer, when the insured event occurred.
2. The insurance amount is established by the contract. In compulsory insurance, they cannot be less than the amount, established by the legislative acts.
3. When insuring property, the insurance amount cannot exceed its actual value at the time of the contract (the insured value).
4. The parties may not challenge the value of the property, defined in the insurance contract, except in cases, where the insurer can prove that he (she) was deliberately misled by the insured. If the insurance amount determined by the contract of insurance, exceed the insured value, it is invalid to the extent of the insurance amount that exceeds the insured value at the time of the contract.
5. (Is excluded - dated February 20, 2006 No. 128 (the order of enforcement see Art. 2). Footnote. Article 819 as amended by the Law of the Republic of Kazakhstan dated
December 18, 2000 No. 128, dated February 20, 2006 No. 128 (the order of enforcement see Article 2).
Article 820. Insurance Payment
1. Insurance payment is the amount of money, paid by the insurer to the insured ( beneficiary) within the insured sum, upon the occurrence of insured event or the due date, specified in the contract of endowment insurance.
Insurance payment is carried out by a time sum payment, with the exception of insurance payments on annuity insurance contracts.
2. Procedure for determining the amount of insurance payments is established by the contract. On compulsory insurance, the procedure for determining insurance premium is determined by legislative acts of the Republic of Kazakhstan.
3. The order and term of insurance payments are determined by the contract. On compulsory insurance they can be determined by legislative acts 4. Insurance payments for property insurance and civil liability cannot exceed the amount
of actual damages, incurred by the insured (the insured) as a result of occurrence of loss.
5. Insurance payments for private insurance are carried out to the insured (the insured), regardless of the payable amounts of social security, other insurance contracts and as compensation of damages.
6. The Terms of the contract for property insurance may provide for the replacement of the insurance payment by compensation of damage in kind, within the amount of insurance payment.
7. When the insurance payment, the insurer is entitled to offset, due to him (her) from the insured insurance premiums or insurance contributions.
8. For late payment of insurance, the insurer is responsible in accordance with Article 353 of this Code, unless there is a higher amount of liability provided by contract or legislation on compulsory insurance.
Footnote. Article 820 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128, dated February 20, 2006 No. 128 (the order of enforcement see Art. 2).
Article 821. Double Insurance
1. Double (multiple) insurance is an insurance of the same object by several insurers under individual contracts with each one.
2. On double insurance of the property, every insurer is liable to the insured within the contract concluded with him (her), but the total amount of insurance payments, received by the insured from all insurers cannot exceed the actual damage.
In this case, the insured is entitled to receive an insurance payment from any insurer, in the amount of the insured sum, provided by the contract with him (her). In case, if the insurance payment does not cover the actual damage, the insured is entitled to receive the remaining amount from another insurer.
Insurer, wholly or partially released from the insurance payments, due to the fact that the damage compensated by other insurers, shall be obliged to return the relevant part of premiums, net of incurred expenses.
3. On double (multiple) personal insurance, every insurer performs his (her) insurance obligations to the insured him (her) self, regardless of the performance of them by other insurers.
Footnote. Article 821 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 822. Collective Insurance
1. In collective insurance, the insurance contract covers several insured persons, who are also beneficiaries.
2. Collective insurance can be both personal and property, personified and impersonal, which covers certain categories of persons.
In impersonal insurance, the circle of insured persons must be clarified in the contract of insurance, in so far, as this is necessary for the individualization of the insured event, the consequences for each of the insured and the amount of insurance payments due to him (her).
3. Collective insurance of the employer for their employees can only be personal insurance.
Footnote. Article 822 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 823. Co-Insurance
1. The object of insurance can be insured under one contract by several insurers ( co-insurance). In this case, the contract should contain conditions that determine the rights and obligations of each insurer in agreed proportions.
If such contract does not specify the rights and obligations of each of the insurers, they are jointly and severally liable to the insured (or beneficiary) for an insurance payment.
2. Co-insurers on co-insurance of large or very large risks can create on the basis of joint operation agreement on co-partnerships (insurance pools).
3. In the presence of an agreement between all co-insurers, one of them may represents all co-insurers in the relationship with the insured person, remaining liable to the latter, only in his (her) interest.
Footnote. Article 823 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 824. Reinsurance
1. The insurer is entitled by reinsurance to cover the risk of execution of any or all of his ( her) obligations to the insured person by another insurer (the reinsurer).
2. The Insurer, who is concluded with a contract of reinsurance (reinsurance), remains liable to the insured in full, in accordance with the insurance contract, concluded with him ( her).
3. The terms of reinsurance are determined by legislative acts of the Republic of Kazakhstan and the reinsurance contract between the reinsured and the reinsurer.
The reinsurance contract must meet the requirements of this Code in the insurance contract. The insurer by the insurance contract in the reinsurance contract shall be the insured.
4. Reinsurers for a reinsurance undertaking can unite on the basis of joint operation agreement on co-partnerships (reinsurance pools).
5. Continuous conclusion of two or several reinsurance contracts is allowed.
Footnote. Article 824 as amended by the Law of the Republic of Kazakhstan dated July 10, 2003 No. 483 (shall be enforced from January 1, 2004), dated February 20, 2006 No. 128 (the order of enforcement see Art. 2).
Article 825. Insurance Form
1. The insurance contract shall be in writing, by: 1) preparation of the parties of the insurance contract;
2) adherence of the insured to the standard specifications (insurance regulations), developed by the insurer unilaterally (contract of adhesion), and the issuance of the insurance policy to the insured by the insurer;
3) (sub-paragraph is excluded by the Law of the Republic of Kazakhstan dated July 10, 2003 No. 483 (shall be enforced from January 1, 2004);
4) (Is excluded - dated February 20, 2006 No. 128 (the order of enforcement see Article 2 ).
2. The form of a written contract on compulsory insurance is determined by the Laws of the Republic of Kazakhstan on compulsory insurance, and on voluntary insurance is by the insurer or by agreement of the parties.
3. Failure to comply with the written form of the contract of insurance shall entail its invalidity.
Footnote. Article 825 as amended by the Laws of the Republic of Kazakhstan dated December 18, 2000 No. 128, dated July 1, 2003 No. 445; by the Law of the Republic of Kazakhstan dated July 10, 2003 No. 483 (shall be enforced from January 1, 2004), dated February 20, 2006 No. 128 (the order of enforcement see Art. 2).
Article 825-1. Insurance Regulations
1. Insurance regulations, developed by the insurer for each of insurance must meet the requirements of this Article.
2. Insurance regulations shall include: 1) a list of insurance objects; 2) the procedure for determining the sum insured; 3) the range of insured events; 4) exclusion from insurance events and limitation of insurance; 5) the time and place of the insurance contract; 6) procedure for the conclusion of the insurance contract; 7) rights and obligations of the parties; 8) actions of the insured, upon the occurrence of the insurance event; 9) a list of documents confirming the occurrence of the insured event and the amount of
damages;
10) the procedure and conditions for insurance payments; 10-1) the period of notice of the insured person or the insured on the missing documents,
necessary for insurance payments; 11) term of acceptance the decision of insurance payment or refusal in insurance payment; 12) conditions for termination of the contract of insurance; 13) dispute resolution procedures; 14) excluded by the Law of the Republic of Kazakhstan dated 20.02.2006 No. 128 (the
order of enforcement see Article 2). 15) additional conditions. 3. Is excluded by the Law of the Republic of Kazakhstan dated 10.07.2003 No. 483 (shall
be enforced from 01.01.2004). 4. Contracts of insurance can be made by agreement between the insured and the insurer,
on the basis of the rules of insurance, providing additional conditions, specified in the conclusion of the insurance contract.
5. Is excluded by the Law of the Republic of Kazakhstan dated 30.12.2009 No. 234-IV. Footnote. The Code is supplemented by Article 825-1 in accordance with the Law of the
Republic of Kazakhstan dated 18.12.2000 No. 128, as amended by the Law of the Republic of Kazakhstan dated 10.07.2003 No. 483 (shall be enforced from 01.01.2004), dated 20.02.2006 No. 128 (the the order of enforcement see Art. 2), dated 30.12.2009 No. 234-IV; dated 15.07.2010 No. 338-IV (the order of enforcement See Art. 2).
Article 826. Content Of The Insurance Contract
1. The insurance contract shall contain: 1) the name, address, and bank details of the insurer; 2) the surname, first name and patronymic (in presence) and place of residence of the
insured (if an individual) or the name, address and bank details (if a legal entity); 3) an identification of the insurance object; 4) the insured event; 5) the amount of insurance payment (excluding annuity insurance contracts) and the order
and timing of insurance payments; 6) the amount of the insurance premium, the order and terms of payment it; 7) the date and term of the contract; 8) details of the insured and the beneficiary person, if they are members of the insurance
relationship; 9) number and series of the contract (insurance policy); 10) cases and the procedure for amending the terms of the contract;
11) the terms of payment and the amount of cash surrender value (for endowment insurance);
11-1) the period of notification of the insured person or the insured on the missing documents, necessary for insurance payments;
Note of the RCLI! Sub-paragraph 12) shall be enforced from 01.01.2012 and expires 01.01.2013. 12) indication of the taxpayer identification number (if available), indication of residency
and economy sector of the insured person; Note of the RCLI! Sub-paragraph 13) shall be enforced from 01.01.2012 and expires 01.01.2013. 13) indication of the taxpayer identification number (if available), indication of residency
and economy sector of the insured person (beneficiary), if he (she) is not an insured under the insurance contract, in the case of indication of the insured (beneficiary) in the insurance contract;
14) the currency of the sum insured, the insurance payments and insurance premiums. Note of the RCLI! Article 826, is supplemented by sub-paragraphs 15), 16) in accordance with the Law of
the Republic of Kazakhstan dated 12.01.2012 No. 538-IV (shall be enforced from 01.01.2013 ).
2. By agreement of the parties other conditions may include to the contract. 2-1. Franchise is releasing the insurer from the damages, not exceeding a certain amount,
under the conditions of the insurance contract. Franchise shall be conditional (non-deductible) and unconditional (deductible).
In a conditional franchise, the insurer is released from damages that do not exceed a specified amount of the franchise, but the insurer must pay damages in full, if its sum is bigger than that amount.
On unconditional franchise, the damages shall be refunded, net of a specified amount in all cases.
Franchise is set either in percentage of the sum insured, or in absolute amounts. 3. If an insurance contract contains conditions that restrict the rights of the insured beyond
those, provided by legislative acts, the rules set out by legislation shall apply. 4. The liability period of the reinsurer, under the reinsurance contract shall correspond to
the period of liability of the insurer under the insurance contract, the obligations for which transferred to reinsurance, if the reinsurance contract provides otherwise.
5. The insurer shall be liable for the incompleteness of conditions, which must be referred in the contract of insurance.
Footnote. Article 826 as amended by the Laws of the Republic of Kazakhstan dated 18.12.2000 No. 128, dated 20.02.2006 No. 128 (the order of enforcement see Art. 2), dated 12.01.2007 No. 225 (shall be enforced from the day of its official publication); dated 30.12.2009 No. 234-IV; dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2), dated 12.01.2012 No. 538-IV (the order of enforcement see Art. 2).
Article 826-1. Deferral Of Payment Of Insurance Premiums Under The Endowment Insurance Contract
1. The insurer, who has not received insurance contributions (except the first) within the contractual term of the endowment insurance, shall notify the insured person on necessity to pay the insurance contribution.
2. The notice shall contain: 1) the period during which, insurance payment must be paid (deferral period of insurance
premium); 2) the penalty for late payment of the premium;
3) the right of the insurer to unilaterally terminate the contract, in case of default of payment of the insurance premium, for the period of deferment of premiums.
3. The deferral period of the insurance premium cannot be less than 30 calendar days. 4. Upon the occurrence of an insurance event, in the period of deferral of insurance
premium under the endowment insurance contract, the insurer is obligated to make an insurance payment, keeping the outstanding amount.
5. Notification of the necessity the insurance premium shall be sent to the insured person in a way that allows him (her) to confirm the notification.
Footnote. The Code is supplemented by Article 826-1 in accordance with the Law of the Republic of Kazakhstan dated 18.12.2000 No. 128, as amended by the Laws of the Republic of Kazakhstan dated 20.02.2006 No. 128 (the order of enforcement see Art. 2), dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 826-2. Restoration Of The Endowment Insurance Contract
1. If the validity of the endowment insurance contract is suspended or terminated on the basis of non-payment of the premium by the insured person, the insurer is obliged to restore the validity of the contract on payment of the insured person:
1) (Is excluded - dated February 20, 2006 No. 128 (the order of enforcement see Article 2 );
2) overdue insurance premiums; 3) penalty interest for late payment of insurance premiums, in the amount specified in
Article 353 of this Code. 2. The insured person is eligible to restore the contract of endowment insurance for one
year, from the date of termination or suspension of execution of obligations by the parties of the contract.
3. The insurer may, at the restoration of the contract of endowment insurance conduct medical examination of the health of the insured person.
In case of deterioration of health of the insured person, the insurer is entitled to recalculate the amount of insurance payments and (or) the insurance premium. In case of failure of the insured person, to recover the contract on new terms, the contract cannot be restored.
4. The insurer is eligible to refuse the restoration the contract of endowment insurance, if such contract was early terminated and the insurer had paid the redemption sum.
Footnote. Is supplemented by Article 826-2 by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128; as amended - dated February 20, 2006 No. 128 (the order of enforcement see Article 2).
Article 826-3. Insurance Under Contract, By Registration Of The General Policy
1. By agreement of the insurer with the insured person, the systematic insuring of different sets of homogeneous property (commodities, goods, etc.) on the same conditions for a specified period may be based on a single insurance contract, by giving the insured the general policy.
2. The insured person shall, in respect of each lot of property, which is subject of the contract, and referred in paragraph 1 of this Article, inform the insurer within a prescribed time, on the information arising from such a contract, and if the time is not provided by the contract, immediately upon its receipt. The insured is not relieved of this duty, even if at the time of receipt such information, the possibility of damages, having been paid by the insurer, has already passed.
3. At the request of insured person, the insurer is obliged to issue insurance policies for individual lots of property, subject to the contract, referred in paragraph 1 of this Article.
If the insurance policy is not conformed to the content of general policy, the insurance policy shall be preferred.
Footnote. Is supplemented by Article 826-3 - by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 827. Validity Of The Insurance Contract
1. The insurance contract shall become effective and binding on the parties upon the payment of the insured person premiums and the payment of it by installments is the first insurance premium, unless the contract or legislative acts on compulsory insurance provides otherwise.
2. The insurance contract is terminated from the date of insurance payment for the first occurrence of the insurance event, unless the contract or legislative acts on compulsory insurance provides otherwise.
3. The validity period of insurance protection corresponds with the term of the contract, unless the contract or legislation on compulsory insurance provides otherwise.
Footnote. Article 827 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 828. Obligations Of The Insurer
1. Insurer shall: 1) upon the occurrence of the insured event, make an insurance payment in the amount,
manner and time specified in the insurance policy or legislation; 1-1) inform the insured person with the insurance regulations, and provide a copy of the
rules, if the insurance contract is concluded in the form of merger agreement with issuing to the insurer, the insurance policy on voluntary insurance;
2) compensate the insured (the insured) costs, incurred by him (her) to reduce losses on the insured event;
3) provide insurance secrecy; 4) in cases, where an insured person (insured) or a victim (or beneficiary) or their
representatives do not give all the documents, required for insurance payment, notify them on the missing documents within the period, specified in the insurance contract.
2. Legislative acts on insurance and insurance activities, as well as the insurance contract may stipulate other duties of the insurer.
Footnote. Article 828 as amended by the Laws of the Republic of Kazakhstan dated 18.12.2000 No. 128, dated 30.12.2009 No. 234-IV; dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 829. Compensation Of Expenses, To Reduce Losses From An Insurance Case
1. Upon the occurrence of an insured event under the contract of property insurance, the insured (insured) shall take the reasonable and available measures to prevent or reduce potential losses, including measures to save and preserve the insured property.
In taking such action, the insured person (insured) shall follow the instructions of the insurer, if the insured person (insured) has been informed about them.
2. Expenses, incurred by the insured person (the insured) to prevent or reduce losses, shall be compensated by the insurer, if such expenses were necessary or were made to follow instructions of the insurer, even if such measures were unsuccessful.
Such expenses shall be compensated at actual amount, but, the total amount of insurance payment and compensation of expenses, cannot exceed the insured sum under the contract of insurance, and if the costs resulted, from the execution of the insured person (insured) on the instructions of the insurer, they shall be compensated in full, regardless of insurance amount.
3. The insurer shall be released from the insurance payments, of the losses, that have arisen due to the fact, that the insured person (insured) deliberately did not take the reasonable and available measures to reduce possible losses.
Footnote. Article 829 as amended by the Laws of the Republic of Kazakhstan dated December 18, 2000 No. 128, dated July 1, 2003 No. 445.
Article 830. Insurance Secrecy
1. Insurance secrecy includes information on the size of the insured sum, the redemption payment and paid-up premiums, and other terms of the contract of insurance (reinsurance) related to the individual insured person, the insured or the beneficiary. Information about insurance (reinsurance) contracts, insurance (reinsurance) company, which is in the process of liquidation is not an insurance secrecy.
1-1. Legislative acts on insurance and insurance activity may provide other conditions and procedures for the disclosure of information, which could include insurance secrets.
2. Professional participants of the insurance market, insurance agents may not disclose information, which they received as a result of their professional activity, and insurance secrets, except to provide information of other professional participants of the insurance market, or insurance agents, relating to the conclusion of contracts of reinsurance or relationships on coinsurance, as well as cases, provided in paragraphs 4, 5 and 6 of this Article.
3. Officials, employees of insurance (reinsurance) company, insurance brokers, insurance agents and other persons who, due to performance of their duties have access to information, constituting insurance secrecy, and for their disclosure shall be liable under legislation of the Republic of Kazakhstan.
4. Insurance secrecy may be disclosed to a third party under a written agreement of the insured (the insured, the beneficiary).
5. Information, containing the insurance secret, can only be provided to: 1) the representative of the insured (beneficiary) - on the basis of notarized power of
attorney; 2) the body of inquiry and preliminary investigation - by criminal cases, on their
procedure; 3) the court - by cases on its procedure, based on a determination or decision of the court; 4) the prosecutor - by order on the procedure of inspection, on matters within his (her)
competence, and materials, under his (her) consideration; 4-1) the authorized agency for financial monitoring - for the purposes and according to the
law of the Republic of Kazakhstan "On counteraction against legalization (laundering) of income, received from crime and to financing of terrorism";
5) the competent government body - regarding to the supervision action for insurance activity;
6) other persons in accordance with the laws of the Republic of Kazakhstan on insurance and insurance activity.
6. Information, containing the insurance secrets, in case of death of the insured person, the insured, and the beneficiary, shall be issued to:
1) heirs; 2) the courts and notaries, under their inheritance cases, based on a determination of a
court or a written request of the notary, certified by his (her) seal. A written request of a notary must be annexed by a copy of the death certificate of the insured;
3) foreign consulates - under their cases of inheritance. 7. General terms and conditions of the insurance activity, a list of proposed insurance,
insurance rates, insurance periods, and other basic conditions of the insurance (reinsurance) contract are public information and cannot be the subject of insurance secrets and commercial secrets.
8. In the case of disclosure of the insurer of information constituting insurance secrets, the insured (the insured, the beneficiary) shall be entitled to demand compensation for the damages and, in appropriate cases - compensation for moral injury.
Footnote. Article 830 is in the wording of the Law of the Republic of Kazakhstan dated 18.12.2000 No. 128, as amended by the Laws of the Republic of Kazakhstan dated 10.07.2003 No. 483 (shall be enforced from 01.01.2004), dated 27.02.2004 No. 527 (shall be enforced from 01.04.2004), dated 20.02.2006 No. 128 (the order of enforcement see Article 2 ), dated 28.08.2009 No. 192-IV (shall be enforced from 08.03.2010), dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2), dated 21.06.2012 No. 19-V (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 831. Obligations Of The Insured
1. The insured shall: 1) pay insurance premiums in the amount, manner and time stipulated in the contract of
insurance; 2) inform the insurer of the state of the insurance risk; 3) notify the insurer upon the occurrence of an insured event; 4) take measures to reduce the losses of the insured event (paragraph 1 of Article 829 of
this Code); 5) to pass on the details of third parties responsible for the occurrence of insured events to
the insurer (Article 840 of this Code). 2. The insurance contract may provide other duties of the insured. Footnote. Article 831 as amended by the Law of the Republic of Kazakhstan dated
December 18, 2000 No. 128.
Article 832. The Information Provided By The Insured In The Contract
1. At the conclusion of the contract, the insured shall notify the insurer, with circumstances, which he (she) has known, and essential to determine the probability of the insured event and the size of potential losses from its onset (insurance risk), if these circumstances are not known or should be known to the insurer.
Circumstances, definitely stipulated in the rules of insurance, developed by the insurer, or in the written request of the insurer, sent to the insured at the period of the contract are recognized as essential.
2. If the insurance contract is concluded in the absence of the insured answers to any questions of the insurer, the latter may not subsequently demand termination of the contract or annulment, on the grounds that the relevant circumstances have not been insured.
3. If after the conclusion of the contract, it is established that the insured supplies the insurer with false information about their circumstances, mentioned in paragraph 1 of this Article, the insurer may require the rescission of the contract and apply the consequences, provided in the second and third parts of paragraph 1 of Article 844 of this Code. The insurer may not require the rescission of the contract, if the circumstances of which omitted the insured, has disappeared.
Footnote. Article 832 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 833. Assessment Of Insurance Risk And Caused Damage
1. In the contract of property insurance, the insurer is entitled to inspect and evaluate the insured property, and if necessary appoint examination in order to establish its actual value.
The evaluation of the insured property and injury is part of the insurance carried by the insurer, and does not require additional licensing.
2. In contract of personal insurance, the insurer is entitled to examine the insured person for assessment of the actual state of his (her) health.
3. The insurer’s assessment of the insurance risk on the basis of this article is not necessary for the insured who is entitled to prove another.
4. The size of the damage, caused at the occurrence of the insured event shall determine the insurer, at the request of the insured or his (her) representative. If necessary, assessment of the size of damages shall be provided by the appraising officer (independent expert). The parties may prove another, if they disagree with the assessment of damages.
5. On compulsory insurance, procedures and conditions for assessment the size of the damage, caused by the insured event can be determined by the legislative acts of the Republic of Kazakhstan.
Footnote. Article 833 as amended by the Laws of the Republic of Kazakhstan dated July 1 , 2003 No. 445; dated May 7, 2007 No. 244.
Article 834. The Consequences Of Increasing Insurance Risk In The Period Of The Contract
1.In the period of the contract of property insurance, the insured (insured) shall immediately inform the insurer about any significant changes in circumstances that they are aware of which from the conditions reported to the insurer at the conclusion of the contract, if these changes can significantly increase the insurance risk.
The following changes that recognized as significant in the insurance contract: 2. The insurer, noticed about the circumstances, entailing an increase of insurance risk,
may require changes in the terms of the contract or the payment of additional premiums, commensurate to increase in risk.
If the insured person or the insured, objects to the changes in the conditions of the contract of insurance or co-payment of the insurance premium, the insurer may request termination of the contract in accordance with the rules provided by Chapter 24 of this Code.
3. In the event of failure of the obligation, stipulated in paragraph 1 of this Article by the insured person or the insured, the insurer is entitled to demand termination of the contract and compensation damages, caused by the termination of the contract.
4. The insurer is not entitled to demand termination of the contract, if the circumstances which had increased insurance risk disappear.
5. In personal insurance, consequences of changing the insured risk during the term of the contract, established in paragraphs 2 and 3 of this Article, may result, if they are expressly provided in the contract.
Footnote. Article 834 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 835. The Notice Of The Insurer About The Insurance Event
1. The insured person, after he (she) has known about the insurance event, shall immediately notify the insurer or his (her) representative about it. If a contract or legal act of the Republic of Kazakhstan on compulsory insurance, stipulates for the period and (or) method of notification, it should be done at an agreed time and by way specified in the contract or the legal act of the Republic of Kazakhstan
If the insured person is not insured, this responsibility lies on the insured. If in personal insurance, the insured event is the death of the insured the obligation to
notify the insurer about the insured event lies on the insured person and if he (she) simultaneously was the insured - on the beneficiary. And a contract period of notice of the insurer cannot be less than thirty days.
2. The beneficiary has the right to notify the insurer about the insured event, under all circumstances, regardless of whether the insured person or the insured did it or not.
3. Failure to notify the insurer about the insurance event, gives him (her) the right to refuse in the payment of insurance, unless it is proved, that the insurer promptly known about the insurance event or the lack of information of the insurer about it, would not affect to his ( her) obligation to make insurance payment.
Footnote. Article 835 as amended by the Laws of the Republic of Kazakhstan dated December 18, 2000 No. 128, dated July 1, 2003 No. 445.
Article 836. Replacement Of An Insured Person
1. In the case of death of the insured person, who concluded the property insurance contract, his (her) rights and obligations shall transfer to the person, who takes the property by inheritance. In other cases of transferring property rights (or other rights), the rights and obligations of the insured shall transfer to the new owner (or the owner of other property rights) with the consent of the insurer, unless the contract or legislation provides another.
2. In the case of death of the insured person, who is concluded the personal insurance contract in favor of the insured, the rights and obligations, determined by this contract shall pass to the insured with his (her) consent. By inability of the insured person to fulfill obligations under an insurance contract, his (her) rights and obligations may be transferred to the persons, engaged in accordance with the laws on duty to protect his (her) rights and legitimate interests.
3. When reorganizing the insured, who is a legal entity, in the period of the insurance contract, his (her) rights and obligations under this contract shall transfer to the appropriate successor with the consent of the insurer and in the manner, prescribed by this Code.
Article 837. Replacement Of An Insured
1. If in the contract of insurance the liability for damage (Article 811 of this Code) insures the liability of a person other, than the insured, the latter is entitled, unless otherwise provided by the contract, at any time before the insured event to replace this person by another, with the written notice to the insurer.
2. The insured, who is not the insured person, named in the contract of personal insurance, property insurance, can be replaced by another with the consent of the insured (except for group life insurance) and the insurer.
3. If the third party insurance follows from the requirements of legislation on compulsory insurance, the replacement of the insured shall be, as prescribed by these laws and the contract based on them.
Footnote. Article 837 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 838. Replacement The Beneficiary
1. The insured person is entitled, before the insured event to replace a non-insured beneficiary, who is named in the insurance contract, by another person, with a written notice to the insurer.
2. The beneficiary may not be replaced by another person, after his (her) performance of certain duties, under the contract of insurance, arising from his (her) agreement with the insured, or claim to the insurer the insurance payments.
3. Replacement of the beneficiary, who is the insured, shall be in accordance with the procedure provided by Article 837 of this Code.
Footnote. Article 838 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128
Article 839. Grounds For Relief Insurer From Exercising Insurance Payment
1. The insurer has the right to refuse all or part in the insurance payment to the insured, if the insured event has occurred due to:
1) intentional acts of the insured person, the insured, and (or) the beneficiary, aimed at occurrence of the insured event or contributing to its occurrence, except for acts, committed in self-defense and necessity;
2) the actions of the insured person, the insured, and (or) the beneficiary, recognized by legal procedure as intentional crime or misdemeanor, that are in causal connection with the insured event.
The insurer is not relieved from the insurance payments under the contract of civil liability insurance, if an accident was caused by a person, whose responsibility is the subject of insurance.
The insurer is not relieved from the insurance payment, which is payable under the contract of personal insurance in the event of death of the insured, if the death was due to suicide and by that time the insurance contract has acted at least two years.
2. If a voluntary insurance contract and legislation on compulsory insurance provides otherwise, the insurer shall be exempt from payment of the insurance, if the insured event occurs due to:
1) affection of a nuclear explosion, radiation or radioactive contamination; 2) military activities; 3) civil war, any kind of civil unrest, mass riots or strike actions.
3. A property insurance contract provides otherwise, the insurer is relieved of the insurance payments for losses, incurred as a result of seizure, confiscation, requisition, arrest or destruction of the insured property, by order of the government.
4. The grounds for refusal of the insurer in making the insurance payments may also be the following:
1) the insured posts to the insurer the false information about insurance object, insurance risk, the insured event and its consequences;
2) willful failure of the insured to take action to reduce losses on an insurance event ( Article 829 of this Code);
3) receiving of the insured a respective compensation of losses on property insurance from the person, who is responsible for causing the damage;
4) prevention by the insured person to the insurer in the investigation of the insured events and the determination of the amount of loss caused by them;
5) failure to notify the insurer about the insured event (Article 835 of this Code); 6) refusal of the insured person from his (her) claim against the person, who is responsible
for the occurrence of the insured event, as well as refusal to hand over documents the insurer, which are needed for transferring to the insurer the claim (Article 840 of this Code). If the insurance payment has already been paid, the insurer has the right to demand its return in full or in part;
7) other cases stipulated by legislative acts. 5. Exemption of the insurer from insurance liability to the insured person, based on his (
her) misconduct, provided by this Article, simultaneously shall release the insurer from the insurance payment to the insured or the beneficiary.
6. If it does not contradict legislation, the terms of the insurance contract may provide other grounds for refusal of an insurance payment.
7. The decision on refusal of the insurance payment shall be accepted by the insurer, and the insured shall be informed in writing, with motivated reasons for refusal.
8. The insurer's refusal to make an insurance payment may be appealed by the insurer in court.
Footnote. Article 839 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128 (the order of enforcement see Article 2).
Article 840. Transition To The Insurer Rights Of The Insured To Claim Damages ( Subrogation)
1. If the property insurance contract provides otherwise, the insurer, who has effected an insurance payment, shall transfer a claim, within the paid amount, which the insured (insured) has the person, who is responsible for the losses, compensated by insurance. However, the condition of the contract, excluding the transition the insurer the claim to the person, who is intentionally caused damages, is invalid.
2. The right to claim, passed to the insurer shall performed by him (her) in compliance with the rules, governing the relationship between the insured (the insured) and the person, who is responsible the losses.
3. Insured person (insured) shall on receipt of insurance payment, transfer to the insurer all the documents and evidence, and tell him (her) all the information, necessary to perform the claim, passed to him (her) by the insurer.
4. If the insured person (insured) refused from his (her) claim to the person, who is responsible for the losses, compensated by the insurer, or exercising this right has become impossible, due to the fault of the insured (the insured), the insurer shall be exempt from the insurance payment in full or in corresponding part and shall be entitled to demand the return of the excessively paid amount.
Footnote. Article 840 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 841. Early Termination Of The Insurance Contract
1. Besides the general grounds for termination of the obligations under this Code, the insurance contract shall be terminated early in the event of :
1) the insurance object ceases to exist; 2) the death of the insured, who is not the insured person, and there was not a replacement
(paragraph 8 of Article 815 of this Code); 3) disposal by the insured person of the object of property insurance, if the insurer objects
to replace the insured, and the contract or legislation on compulsory insurance provides otherwise (paragraph 1 of Article 836 of this Code);
4) termination in the established order of business by the insured person, who had insured his (her) entrepreneurial risk or civil liability, connected with these activities;
5) the possibility of the occurrence of insured event has disappeared, and the existence of the insurance risk stopped by circumstances, other than insurance event.
In such cases, the contract shall be terminated from the moment of the circumstances, provided as a basis for termination of the contract and about, an interested party shall promptly notify the other;
6) entry into force of the court decision on compulsory liquidation of the insurer, except in cases, stipulated by the Law of the Republic of Kazakhstan "On Insurance";
7) Excluded by the Law of the Republic of Kazakhstan dated 15.07.2010 No. 338-IV (the order of enforcement See Article 2);
8) changes to the conditions and information, included in the insurance policy, which is issued by an insurer, in accordance with the procedure, established by the legislative acts of the Republic of Kazakhstan;
9) in the cases, stipulated by the Law of the Republic of Kazakhstan "On Insurance". 1-1. If the insurer under the contract of endowment insurance terminates it unilaterally
from the fourteenth to the thirtieth day after the date of conclusion of the contract, the insurer shall return the insured, the received amount of premiums, minus expenses, which cannot
exceed twenty percent of the amount received as insurance premiums, incurred by the insurer at the conclusion of endowment insurance contract.
2. The insurer is eligible to cancel the contract of insurance at any time. Footnote. Article 841 as amended by the Laws of the Republic of Kazakhstan dated
10.07.2003 No. 483 (shall be enforced from 01.01.2004), dated 20.02.2006 No. 128 (the order of enforcement see Art. 2), dated 30.12.2009 No. 234-IV, dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 842. Effects Of Early Termination Of Insurance Contract
1. In case of early termination of the contract of unfunded insurance due to the circumstances, provided in paragraph 1 of Article 841 of this Code, the insurer is entitled to a portion of the premium in proportion to the time, during which there were insurance premiums being paid. Refund of premiums (contributions) for liquidation of the insurer shall be in accordance with the priority of creditors, under the law of the Republic of Kazakhstan on insurance and insurance activity.
In case of early termination of the contract of endowment insurance, in the cases provided by sub-paragraph 6) of paragraph 1 of Article 841 of this Code and paragraph 3 of this Article , shall be refunded only the redemption amount, established by the contract, and in accordance with the priority of creditors under the law of the Republic of Kazakhstan on insurance and insurance activity.
2. If the insured refuses on the contract (paragraph 2 of Article 841 of this Code), and it is not connected with the matters, provided in paragraphs 1 and 1-1 of Article 841 of this Code, the premium or insurance fees, paid to the insurer are non-refundable, unless the contract provides another.
3.In cases, where the early termination of insurance contract, is due to the insurer’s failure of the conditions, the latter is obliged to return the insured the paid insurance premiums or insurance contributions in full.
Footnote. Article 842 is in the wording of the Law of the Republic of Kazakhstan dated 15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 843. Invalidity Of The Insurance Contract
1. Besides the general grounds for invalidity of the legal contracts, provided by this Code, the insurance contract is invalid, if:
1) at the time the contract was missing the object of insurance; 2) the objects of the insurance are illegal property interests (paragraph 2 of Article 807); 3) the object of insurance is subject to confiscation property, under the an enforceable
court decision, or property obtained by crime, or is a target of crime;
4) as an insurance event, provided the event, which is divided of signs of probability and randomness of its occurrence (paragraph 3 of Article 817 of this Code) and, is inevitable and must objectively occur within the contract, what about the parties or, at least, the insurer had already known;
5) the insured in the contract, knowingly aimed to extract improper advantage, including a contract after the insurance event;
6) (Is excluded - dated February 20, 2006 No. 128 (the order of enforcement see Art. 2); 7) (Is excluded - dated February 20, 2006 No. 128 (the order of enforcement see Art. 2); 8) lack of consent of the insured in cases, where obtaining consent is required; 9) the written form of contract is not made (paragraph 3 of Article 825 of this Code). 2. Legislative acts on the compulsory insurance may be provided, in respect to certains of
insurance other grounds, which recognized them as invalid. Footnote. Article 843 as amended by the Law of the Republic of Kazakhstan dated
February 20, 2006 No. 128 (the order of enforcement see Article 2).
Article 844. Effects Of Recognition The Invalidity Of The Insurance Contract
1. Upon recognition of an insurance contract as invalid, the insurer is obliged to return the insured, received insurance premium or insurance contributions and, the insured (or beneficiary) returns the insurer the paid insurance payment, received from him (her).
If the contract is invalid on the grounds, that arose as a result of the misconduct of the insured, as the insurer at the time of conclusion of the contract, as well as during the execution, did not know or should have known, the insurer shall return the insurance premium or insurance contributions for the unexpired term of the contract, for net of incurred costs, and if insurance payment was made - has the right to require the return of the amount paid.
The same effects occur in the event, that the insurance contract is recognized as invalid for reasons, which give grounds the insurer to deny in the insurance payment (Article 839 of this Code).
2. If the insurance contract is aimed to achieving the criminal objective shall apply effects under paragraphs 4-6 of Article 157 of this Code.
Footnote. Article 844 as amended by the Law of the Republic of Kazakhstan dated December 18, 2000 No. 128.
Article 845. Mutual Insurance
1. Citizens and legal entities may insure their property interests, provided by paragraph 1 of Article 807 of this Code, on a reciprocal basis by combining as companies of mutual insurance with necessary funds.
2. Mutual insurance companies are non-profit organizations and insure other property interests of their members.
Features of the mutual insurance, legal situation of mutual insurance companies and the conditions of their activity are determined in accordance with this Code and legislation on mutual insurance.
3. The insurance of property interests of members by mutual insurance companies shall be on the basis of membership and insurance contracts.
4. The implementation of compulsory insurance by mutual insurance is allowed in the cases, stipulated by legislative acts on mutual insurance.
5. (Is excluded - dated February 20, 2006 No. 128 (the order of enforcement see Article 2) .
Footnote. Article 845 as amended by the Law of the Republic of Kazakhstan dated February 20, 2006 No. 128 (the order of enforcement see Art. 2), dated July 5, 2006 No. 164 ( the order of enforcement see Art. 2).
Chapter 41. Mandate
Article 846. Contract Of Agency
1. Under an agency contract, one party (agent) undertakes to perform in the name and at the expense of the other party (the principal) certain legal acts. On transactions, executed by agent, the rights and responsibilities arise directly on the principal.
2. An agency contract shall be in writing.
Article 847. Execution Of The Order In Accordance With The Instructions Of The Principal
1. The agent must execute his (her) order in accordance with the instructions of the Principal. The instructions must be specific, legally valid and enforceable.
2.An agent is eligible to withdraw from the instructions of the principal, if by circumstances of the case, it is necessary in the interests of the principal and the agent could not inquire of the principal or has not received a timely response to his (her) request. In this case, the agent must notify the principal on the deviations, as soon as the notification is possible.
3. By agreement of the parties, the commercial representative may be relieved from the duty, specified in paragraph 2 of this Article.
Article 848. Obligations Of The Agent
Agent shall: 1) personally perform his (her) mandate;
2) inform the principal upon his (her) request all the information about the execution of the order;
3) transfer the principal without delay, whatever he (she) is received in the transaction; 4) after execution of the order, without delay return the principal power of attorney, the
validity of which has not expired, and report the application of supporting documents, if it is required by the nature of the order;
5) perform other duties, stipulated by legislative acts of the Republic of Kazakhstan. Footnote. Article 848 as amended by the Law of the Republic of Kazakhstan dated
15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 849. Obligations Of The Principal
1. The principal shall, unless otherwise provided by the contract: 1) provide an agent with the means which are necessary to execute the order; 2) compensate the agent for incurred expenses, which were necessary for the execution of
the order. 2. The principal is obliged to take without delay all executions of the agent in accordance
with the contract. 3. The principal is obliged to pay fees to the agent, after the execution of the order in
accordance with the rules of Article 850 of this Code. 4. Legislative acts of the Republic of Kazakhstan may provide other duties of the
principal. Footnote. Article 849 as amended by the Law of the Republic of Kazakhstan dated
15.07.2010 No. 338-IV (the order of enforcement see Art. 2).
Article 850. Remuneration In The Contract Of Agency
1. Principal shall pay remuneration to the mandatory, if it is provided by legislative acts or the contract.
If the agency contract is related to the implementation of entrepreneurial activity of both parties or one of them, the principal shall pay remuneration to the agent, unless the contract provides another.
2. If a contract or legislation contains a reference to remuneration of executing contracts, but do not specify the amount of remuneration, it shall be determined with reference to commonly accepted rates for such services.
3. Remuneration shall be paid in case, if the agent proves that properly performed all the required actions, but the order was not exercised due to him (her).
Article 851. Appointment Of A Subagent
1. The agent has the right to transfer the performance of agency to another person (deputy ), if the contract provides so or if the agent is forced to do that, in order to protect the interests of the principal.
2. An agent, who entrusts performance to another person, shall immediately notify the principal. Principal is entitled to reject the deputy chosen by the agent, unless this deputy has been named in the contract.
3. If the deputy of the agent is named in the contract, the agent shall not be responsible for his (her) conduct of business.
4. If the company of the deputy is stated in the contract, but the deputy is not named personally in the contract, the agent shall not be responsible for guilty actions of his (her) deputy.
5. If the company of the deputy of agent is not provided in the contract, the agent shall be responsible for any actions of his (her) deputy.
Article 852. Termination Of The Contract Of Agency
1. An agency contract shall be terminated, along with the general grounds for termination of obligations, due to:
1) the request of the principal to cancel the order; 2) the failure of the agent; 3) the death of the principal or agent, or the recognition of any of them incompetent,
incapable or missing. 2. If the agent did not know or should have known about the termination of the agency
contract, his (her) actions, made on the instruction of the principal shall be obligated the principal (his successor) to a third party and the agent.
3. The party, who withdraws from the contract with the agent, who is acting as an entrepreneur, shall notify the other party on the termination of the contract for one month, unless a longer period is provided by the contract.
Article 853. Effects Of Termination Of The Agency Contract
1. If the agency contract terminated before the order is fully executed by the agent, the principal must compensate the agent expenses, incurred in the execution of the order, and if the agent is payable fee?? also pay him (her) a fee, which is commensurate to the work done by him (her). This rule shall not apply to the agent of the order, after he (she) knew or should have known about the termination of the order.
2. The principal’s cancellation of the order shall not be grounds for damages, caused to the agent by termination of the contract, except in cases of termination of the contract with the agent, who is acting as an entrepreneur.
3. Agent’s refusal from execution of the order of the principal shall not be grounds for damages, caused to the principal by termination of the contract, except in cases of an agent’s failure in conditions, when the principal unable to provide otherwise his (her) interests, as well as cases of contract termination by the agent, who is acting as an entrepreneur.
Article 854. Legal Succession In The Contract Of Agency
1. In case of death of the agent, his (her) heirs or other person, who are entrusted with the preservation of the estate, shall be required to notify the principal on the termination of the agency contract and take measures necessary to protect the property of the principal, in particular, keep items as well as documents of the principal, and then shall transfer such items to the principal.
The same obligation rests on the liquidator of a legal entity, who is an agent. 2. With the reorganization of legal entity, which is acting as representative, the principal
shall be immediately notified in accordance with Article 48 of this Code. In this case, the rights and obligations of such entity shall be transferred to its legal successor, if the principal within a reasonable time shall not reject of the contract.
Chapter 42. Actions in Another’s Interest Without Agency (Order)
Article 855. Terms Of Actions In Another’s Interest
1. Actions without orders, other instruction or promised in advance consent of the interested person, in order to prevent harm to his (her) person or property, or the performance of his (her) obligations or his (her) other lawful interests (actions in another's interest) must be performed on the basis of apparent benefit, or benefit and actual or probable intentions of the interested person, with the circumstances of the case, required care and wariness.
2. The provisions of this Chapter, shall not apply to actions in the interest of other persons , committed by public bodies for which, such action is one of the objectives of their activities.
Article 856. Notification Of The Interested Person On The Actions In His (Her) Interest
1.A person, who is acting in another's interest, shall as soon as possible inform the interested person, and wait within a reasonable period of a decision, on approval or disapproval of the taken actions, unless the wait shall not cause serious injury to the interested person.
2. It is not necessary to inform the interested person on actions in his (her) interest, if these actions are being taken in his (her) presence.
Article 857. The Effects Of Approval By The Interested Person, The Actions In His ( Her) Interest
If the person, on whose behalf and without his (her) orders the actions are taken, shall approve these actions, and to the relation of the parties shall apply in the future the rules of the agency contract or any other contract with the nature of the taken actions, even if approval was verbal.
Article 858. The Effects Of Disapproval By The Interested Person, The Actions In His (Her) Interest
1. Actions in another's interest, executed after, the person, who performs it, became known that they are not approved by the interested person, shall not entail any obligations for the latter, in respect of such action, or to a third party.
2. Actions, in order to prevent danger to the life of a person in danger, are prohibited against the will of that person, and the execution of any duty to maintain anybody against the will of him (her) for the person, which is his (her) duty.
Article 859. Compensation Of Losses To The Person, Who Acts In Another’s Interest
1. Necessary expenses and other actual damages, incurred by a person, who is acting in another's interest, in accordance with the rules provided by this Chapter, shall be compensated by the interested person, except for the expenses, caused by the actions specified in paragraph 1 of Article 858 of this Code.
The right to compensation for necessary expenses and other actual damage, shall persist in the case, where the action in another's interest did not lead to the expected result. But, in the case of preventing damage to property of another person the amount of compensation shall not exceed the value of the property.
2. Costs and other damages of the person, who is acting in another's interest, incurred in connection with the actions that have been taken to the approval of the interested person ( Article 857 of this Code), shall be compensated according to the rules of the contract on the species.
Article 860. Remuneration For Acting In Another’s Interest
A person, whose actions in another's interest have resulted in a positive outcome for the interested person, shall be entitled to remuneration, if such right is provided by legislative acts , the agreement with the interested person or business customs.
Article 861. The Effects Of Transaction In Another’s Interest
Obligations under the transaction, concluded in another's interest shall pass to the person, in whose favor it is made, and in condition of the approval of this transaction by him (her) and if the other party does not object to such transfer, or at the conclusion of the transaction knew or should have known that the transaction has been concluded in another's interest.
In the transition of responsibilities under the transaction to the person, in whose interests it was concluded, the latter shall be transferred the rights to this transaction.
Article 862. Unjust Enrichment As A Result Of Actions In Another’s Interest
If actions are not directly aimed at the interests of the other person, including when the person doing them, wrongly assumes that the action in his (her) own interest, led to the unjust enrichment of another person, and shall apply the rules provided by Chapter 48 of this Code.
Article 863. Compensation For Damage Caused By Actions In Another’s Interest
Relationship to compensate for damage, caused by actions in another's interest, to the interested person or third parties, shall be regulated by the rules provided in Chapter 47 of this Code.
Article 864. Report Of A Person, Who Is Acting In Another’s Interest
The person, who was acting in another's interest, shall present to the person, in whose interests the action, the statement, which shows received income and incurred expenditure and other losses.
Chapter 43. Commission Fee
Article 865. Commission Contract
1. Under the commission contract, a party (the commission) shall at the request of the other party (the principal) for a fee, make one or more transactions on his (her) behalf by the expenses of the consignor.
2. Commission contract must be concluded in writing.
Article 866. Commission Remuneration
Consignor shall be obliged to pay compensation to the commission agent, and in the case provided by paragraph 2 of Article 868 of this Chapter, also makes additional compensation in the amount, specified in the contract. If the amount is not provided by contract and cannot be determined on the basis of its terms, the amount of remuneration shall be determined in accordance with paragraph 3 of Article 385 of this Code.
If the commission contract was not executed, due to reasons beyond the control of the consignor, the commission agent shall reserve the right to commission fee, as well as reimbursement for incurred expenses.
Article 867. Rights And Obligations Of The Commission On Transaction With A Third Party
1. For the transactions, made by the commission agent with a third party, the commission agent shall acquire the rights and becomes obligated, even if the consignor was named in the transaction or entered into with a third party in a direct relationship to the transaction.
2. At the request of the consignor, the commission agent must give him (her) the right to such transaction, with noticing of transfer to a third person, with whom the transaction is concluded. The latter shall not be entitled to raise against the consignor objections, based on his (her) demands to the commission, which are not arising out of the transaction.
Article 868. Execution Of A Commission Order
1. The commission shall perform all the duties and exercise all the rights, arising from the transaction, which he (she) concluded with a third party.
2. The commission agent is obliged to execute the assumed order, in accordance with the instructions of the consignor, and in the absence of such indications in the contract - in accordance with the business customs or other usual requirements, in the most favorable conditions for the principal. If the commission agent made a transaction on terms, which are more favorable than those, which have been specified by the consignor, then the profit shall be divided equally by the parties, unless another is provided by the contract.
3. The commission agent shall not be responsible to the consignor, for failure of transaction by a third party, made with him (her) on the expense of the consignor, unless the commission has shown due diligence in the selection of that person, or guaranteed the execution of the transaction (del credere).
4. In the event of failure the transaction by a third party, concluded between the commission agent, the commission agent shall immediately report this to the consignor, and gather and provide the necessary evidence.
5. The consignor, noticed on violation of transaction by a third party, concluded between the commissionaire, is entitled to demand the transfer of the requirements of the commissionaire to him (her) to this person on such transaction.
Article 869. Sub-commission
1. Unless otherwise provided by the contract, the commission is eligible to conclude a sub-agency contract with another person, remaining responsible for the actions of sub-commission to the consignor.
According to the sub-agency contract, the commission shall have the rights and obligations of the consignor in relation to sub-commission, except for the rights provided by paragraph 2 of Article 867 of this Code.
In cases, where the legislation permitted the conclusion of any transactions only by authorized persons, sub-agency contract may be concluded only with such a person.
2. Until the termination of sub-agency contract, the consignor shall have no right to enter into direct relations with sub-commissionaire, unless another is provided by the contract between the commission and the consignor.
Article 870. Deviation From The Instructions Of The Consignor
1. The commission is eligible to withdraw from the instructions of the consignor, in cases provided by paragraph 2 of Article 847 of this Code.
2. The commission, who sells the property for less than agreed with the consignor, shall compensate the latter difference, unless he (she) proves that he (she) was not able to sell the property at an agreed price, and selling at a lower price warned more heavy losses, and the fact, that he (she) had no opportunity to obtain the prior consent of the consignor to withdraw from his (her) instructions.
3. If the commission buys property at a price, higher than agreed with the consignor, and the consignor is not willing to take such a purchase, the consignor shall be obliged to declare this to the commission, immediately upon receipt of notification of transaction with a third party. Otherwise, purchase is recognized as obtained by the consignor.
If the commissionaire reports that takes the difference in the price for his (her) own expense, the consignor shall have no right to refuse from a deal, concluded for him (her).
Article 871. The Right To Property, Which Is Subject To Commission
1. Property, which is received from the consignor or purchased at the expense of consignor by the commissionaire, is the property of the consignor.
2. The commission has the right to retain the property, which shall be transferred to the consignor or a third party under the transaction, concluded by the commission prior to the payment of amounts, due to him (her) under the commission contract.
Article 872. Withholding By The Commissionaire, Amounts Payable To Him (Her)
The commissionaire is eligible to hold due to him (her) under the commission contract amount, of all sums, received by him (her) at the expense of the consignor.
Article 873. Liability Of The Commission For Loss, Shortage Or Damage The Property Of The Consignor
1. The commissionaire is responsible to the consignor for any inaction that caused the loss , shortage or damage to any property of the consignor in his (her) possession.
2. If at the acceptance by the commissionaire property, sent by the consignor or introduced to the commission agent for the consignor, and in this property shall be damage, or other shortages, that can be seen on external examination, and in the event of damage to property of the consignor by any person, which is in the possession of the commissionaire, the commissionaire shall action to protect the rights of the consignor, gather the necessary evidence and all promptly notify the consignor. Under performance of these conditions, the commissionaire shall not be responsible for any loss of the consignor.
3. The commissionaire, who is not insured the consignor’s property located in him (her), shall be responsible for it only in cases, when the consignor ordered him (her) to insure the property or the property insurance is required by law.
Article 874. The Deal For Him(Her)Self
1. If the consignor shall not caused other, the commission contract can be made by the commissionaire so, that he (she) as the seller delivers the goods, which he (she) has to buy, or him(her)self as the buyer accepts the goods, which he (she) must sell.
2. The commissionaire, who present him(her)self as a seller the of goods or to accept them as the buyer, shall be eligible to the usual fee and can bill for compensation of expenses, arising from the transaction fees.
Article 875. Adoption By The Consignor Executed Under The Commission Contract
Consignor shall: 1) accept from the commission everything performed under the contract; 2) inspect the property, purchased for him (her) by the commissionaire, and to notify the
latter, immediately upon the detection of shortages of this property; 3) release of the commissionaire from the obligations, assumed him(her)self to the third
party, on execution the commission order.
Article 876. Compensation Of Expenses For Execution A Commission Order
1. The consignor shall be obliged, in addition to the payment of commission fee, in appropriate cases, to additional compensation for del credere, and to compensate the commissionaire, spent by him (her) on execution orders amount.
2. The commissionaire has no right to compensation on storage of the consignor’s property, if the legislation or the contract provides otherwise.
Article 877. Cancellation Order By The Consignor
The consignor has the right at any time to cancel the order to the commissionaire. The commissionaire’s losses, caused by the cancellation of the order shall be compensated on the same basis.
In case of cancellation of order, consignor shall be obliged to dispose of the property located at the commissionaire, within one month from the cancellation the order, unless the contract provides otherwise. If the consignor fails to fulfill this obligation, the commissionaire may either deposit the property for storage, or to sell it on the best possible price for the consignor.
Article 878. The Refusal Of The Commissionaire To Perform Orders
1. The commissionaire shall not, unless another is provided by contract, refuse to execute received orders, except when the violation of duties by the consignor, entails the impossibility of execution of the order, in accordance with the consignor or impossibility of performance is due to other circumstances, for which the commissionaire is not responding.
The commissionaire shall notify the consignor in writing on his (her) refusal and take measures for safe-keeping of any property of the consignor.
The consignor, who was informed of the refusal of the commission to execute instructions , shall dispose the property which is at the commission agent within a month from the date of receipt of the refusal, unless the contract provides otherwise. If he (she) shall not fulfill this obligation, the commission may either deposit the property for storage, or sell it on the best possible price for the consignor.
2. The commissionaire, who refused the execution of the order due to violation of his (her ) duties by the consignor, shall retain the right to commission fee, as well as compensation for incurred expenses.
Article 879. Termination Of The Commission Contract
1. The contract shall be terminated, in the event of consignor’s cancellation of all orders, under the commission contract.
2. The commission contract shall be terminated, in addition to the common grounds, as a result of:
1) the failure of the commission to execute the contract; 2) the death of the commission, and recognition him (her) incapable, disable, missing or
insolvent (bankrupt).
Article 880. The Refusal Of The Consignor From The Contract, Concluded Without Specification Of The Period
The consignor is eligible at any time to cancel the commission contract, concluded without specifying the period, by notification of the commissionaire about the refusal no later than one month, unless a longer period of notice is not established by the contract.
In this case, the consignor shall be obliged to pay the commission fee to the consignor for transactions, made by him (her) before the termination of the contract, as well as to compensate the consignor expenses, incurred prior to the termination of the contract.
Article 881. The Refusal Of The Commissionaire From The Contract, Concluded Without Specifying The Period
1. The commissionaire is eligible at any time to cancel the commission contract, concluded without specifying the period, with notification the consignor about the refusal no later than one month, unless a longer period of notice is not provided by the contract.
In this case, the commissionaire shall be obliged to take measures for the safe-keeping of any property of the consignor. The consignor shall be obliged to dispose the property, which is at the commission agent before the termination of the contract. If he (she) shall not fulfill this obligation, the commissionaire may either deposit the property for storage, or sell it on the best possible price for the consignor.
2. The commissionaire, who cancels the contract, is eligible to receive commission fee and compensation of expenses, due to him (her) at the time of termination.
Article 882. Legal Succession In The Contract Of Commission
1. In the case of reorganization of the legal entity, which is the commissionaire, his (her) rights and obligations shall be transferred to successors, if within one month from the date of receipt of notice on the reorganization held, consignor shall not report the termination.
2.In case of death of the citizen, who is the consignor, recognition him (her) incapable, disable, and missing, and in the event of liquidation of the legal entity-consignor, the commissionaire shall continue to perform given commission orders, as long as from the heirs or representatives of the consignor shall not be received other appropriate instructions.
Chapter 44. Trust management of property
Article 883. The Concept And Grounds For The Trust Management Of Property
1. In settlement the trust management of property, the trustee shall control on the beneficiary’s behalf the property, transferred to his (her) possession, use and disposal, unless otherwise provided by contract or legislation, in the interests of the beneficiary.
2. Property trust is arising (establishing) on the basis of: 1) transactions (in particular, under the contract, according to the testament, which
appointed the executor (trustee); 2) a judicial act (by appointment of a competent or rehabilitation manager in bankruptcy
proceedings, custody of the estate of the incapacitated, missing or deceased citizen, and in other cases, stipulated by legislative acts);
3) the administrative act (in the establishment of guardianship of the estate of a minor, deceased; admission entrepreneur in the public service and in other cases, stipulated by legislative acts).
3. Features of property trust management for banking activity are established by legislative acts of the Republic of Kazakhstan regulating banking activity.
4. Features of trust management of the state property are established by legislative acts of the Republic of Kazakhstan on state property and other legislative acts of the Republic of Kazakhstan.
Footnote. Article 883 as amended by the Law of the Republic of Kazakhstan dated 12.01.2007 No. 225 (shall be enforced from the day of its official publication), dated 12.02.2009 No. 133-IV (the order of enforcement see Article 2), dated 01.03.2011 No. 414- IV (shall be enforced from the date of its first official publication).
Article 884. Subjects Of Property Trust Management
1. The founder may be the owner, as well as the other subject of a property right or the competent authority, authorized to the transfer of property in trust.
2. The trustee may be any person, unless otherwise provided by legislation. The appointment of a trustee can be made only with his (her) consent.
3. The beneficiary (the person, in whose interests made the management of the property) may be any person, who is not a trustee, and the state or political subdivision.
4. Unless another is provided by legislation or contract on trust management, the beneficiary shall be the founder of the trust property.
Article 885. Subjects Of Property Trust Management
1. The object of trust management can be any property, including cash, securities and property rights, unless another is provided by legislation.
2. Trustee shall account the trust property, separately from the property belonging to him ( her) on the right of ownership (economic control, operational management).
3. Property, acquired and (or) received by the trustee in the course of his (her) duties, shall be included in the trust property.
4. Foreclosure on the debts of the founder to the property, transferred to him (her) in trust, shall not be permitted, except the cases provided by Article 1081 of this Code and the
Insolvency (Bankruptcy) of the person. In bankruptcy of the founder, trust management of this property shall cease, and it is included in the bankruptcy assets.
5. Transfer of the pledged property in trust, shall not deprive the mortgagee the right to foreclose on the property.
Article 886. Trust Management Contract
1. Under the contract of trust management, one party (trustor) transfers to another party ( the trustee) the property in trust, and the other party agrees to manage these assets for the benefit of the person, indicated by the trustee (beneficiary).
In the period of the contract of trust management, the founder of the trust may not take any action with respect to property, held in trust, unless another is provided by the legislative acts of the Republic of Kazakhstan or this contract.
2. The property trust management contract shall provide: 1) the subject and period of the trust management contract; 2) the composition of the property, transferred to the trust; 3) an indication of the beneficiary; 4) the timing and form of reporting of the trustee;
5) an indication to the person, who shall be receiving the property, in the event of termination of the contract of property trust management.
For certains of contracts legislation may provide other essential terms. The contract may provide for other conditions, including the amount and forms of
remuneration. The contract may provide the rights of third parties to the property, which is transferred in
trust. 3. The rules on the trust management contract, shall subject to the relations, arising for
other reasons of establishing trust management, unless otherwise provided by legislation or being of occurred relations.
Footnote. Article 886 as amended by the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416.
Article 887. Form Of The Contract Of Property Trust Management
1. The property trust management contract shall be in writing. 2. The contract of trust management of the real property shall be concluded in the form
and manner prescribed by the contract for the alienation of immovable property. Footnote. Article 887 as amended by the Law of the Republic of Kazakhstan dated
25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 888. Rights And Responsibilities Of The Trustee
1. The Trustee shall have the right to take any action, which would make the owner with a trusted property for the purpose of appropriate management.
The rights of the trustee to the trust property may be limited by legislative acts, contracts or other acts, under which the property trust management are based.
The trustee is eligible to make alienation and pledge of real property only in cases, when it is provided by the Act on establishment of trust management.
2. The trustee is entitled to compensation for necessary expenses, incurred by him (her) in trust management at the expense of the founder (the beneficiary) or a trusted property or from the proceeds of usage of the authorized property.
The trustee shall be entitled to remuneration, if the act provides for the establishment of trust management.
3. Trustee shall be entitled to claim property, entrusted to him (her) from unlawful possession, and demand the removal of a violation of his (her) right to management even these violations are not related to possession.
4. The trustee reports about his (her) activity to the founder and beneficiary in terms and in the manner, prescribed by the contract of trust management. At the request of the founder, and (or) the beneficiary the report on the activity of the trustee shall be submitted immediately in other cases too.
5. The transaction, made by the trustee in breach of his (her) restrictions shall be valid, if involved in such a transaction third parties did not know or should have known such restrictions. In this case, the trustee is liable to the trustor in accordance with the contract and legislation.
Liabilities of the transactions, made by the trustee in excess of the powers, conferred upon him (her) or in violation of the restrictions for him (her), shall bear the trustee by his (her) property.
Article 889. Transference Under The Initiative Of The Trustee
1. Trustee shall execute trust management of the property personally. 2. The trustee may appoint another person to perform any act, required to manage
entrusted property, if he (she) is authorized by act on establishment of a property trust or forced to it by circumstances to ensure the interests of the beneficiary and do not have an opportunity to ask the instructions of the trustor. In this case, the trustee shall be responsible for the actions of his (her) attorney as his (her) own.
The trustee shall promptly notify the trustor about the transference. Trustor, unless another is provided by legislation, in this case is eligible to declare the termination of property
trust management, refund to the trustee the expenses incurred before, and if trust is a business activity, and then compensate the damages.
Footnote. Article 889 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its first official publication).
Article 890. Liability Of The Trustee
1. In case of improper management of the property, the trustor or beneficiary may bring a claim in court to terminate trust and compensate damages. In this case, the trustee is assumed guilty for improper performance of duties unless he (she) proves that he (she) has taken all possible measures for the proper performance of duties.
2. Trustee shall be subsidiary liable to third persons by his (her) property for the damages, caused by improper actions for management of property.
Article 891. Termination Of The Contract Of Property Trust Management
1. Contract on trust management, along with the general grounds for termination of obligations, shall be terminated by:
1) the death of a citizen, who is a trustee, and declaring him (her) dead, the recognition him (her) legal incapable or limited capable, and missing; and liquidation of the legal entity, which is the trustee;
2) refusal of the trustee or trustor, due to the inability to the trustee, personally manage the trusted property;
3) refusal of the trustor from the performance of the contract, subject to payment of damages and fee to the trustee, if it is provided by the contract;
4) refusal of the trustee in the case of non-disclosure to him (her) about the transferring to management the charged property with payment of the fee, if it is provided by the contract.
2. Transfer of ownership to the trusted property shall not cease the property trust management.
3. Upon termination of the contract of property trust management, trusted property shall be transferred to the person, who is specified in the contract.
4. In case of bankruptcy of the trustor, the trust management of property stops and trusted property shall be transferred to the bankruptcy estate.
In the case of death of an individual, who is a trustor the trusted property shall be transferred to the succession mass.
5. Upon termination of the contract by the initiative of one party, the other shall be notified at least three months (except as provided in sub-paragraphs 2) and 4) of paragraph 1 of this Article), unless another is stipulated by legislative acts or the contract.
6. The procedure and conditions for termination of trust management of securities are determined by the legislation of the Republic of Kazakhstan on the securities market.
Footnote. Article 891 as amended by the Law of the Republic of Kazakhstan dated 28.12.2011 No. 524-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 892. Trust Management Of Shares And Other Securities
1. Trustee shall have the right to deal in shares and other securities, transferred in trust, and (or) the acquisition by the trusted property or at the proceeds from the usage of a trusted property.
2. Information about the trust manager on the issuing securities shall be reflected on the account of the owner of the trust, which is opened by the professional participant of the securities market, in accordance with the legislation of the Republic of Kazakhstan.
3. Trustee in the management of entrusted shares (share), unless another is provided by the act on establishing the trust management, shall :
1) participate in the management of the corporation; 2) receive dividends payable on shares and transfer them to the beneficiary; 3) in the event of liquidation of the company receive the shares earned by the property and
transfer it to a beneficiary or the founder under the contract; 4) implement the alienation of shares and otherwise deal with, including the bail.
4. Features of trust management of securities are determined by the legislation of the Republic of Kazakhstan.
Footnote. Article 892 as amended by the Law of the Republic of Kazakhstan dated May 16, 2003 No. 416.
Article 893. Trust Management Assets Of Investment Funds
Features of the trust management of assets of investment funds are operated under the conditions and in the manner established by the legislation of the Republic of Kazakhstan on investment funds.
Footnote. Article 893 is in the wording of the Law of the Republic of Kazakhstan dated July 7, 2004 No. 577.
Article 894. Trust Management Company As A Property Complex
Trust management of company as a property complex is operated on the conditions and in the manner prescribed by the act on establishment of a trust management, unless another is provided by legislation.
Article 895. Trust Management To The Property Of Public Servant
Property of a public servant, used for business activity, shall be transferred to trust management in the cases and in the manner provided by legislative acts.
Chapter 45. Complex Business License (Franchising)
Article 896. The Concept Of A Contract On Complex Business License
1. Under the contract of complex business license, one party (the complex licensor) shall provide the other party (the complex licensee) for the reward the system of exclusive rights ( license complex), including, in particular, the right to use the licensor's brand name and proprietary information, and other intellectual property rights (trade mark, service mark, patent, etc.) specified in the agreement, for use in the business activity of the licensee.
2. The contract of complex business license provides for the use of licensed complex, business reputation and business experience of the licensor in a certain extent (in particular, with the establishment of minimum and (or) the maximum amount of use), with or without the indication of the territory, with respect to a particular field of activity (sale of goods, received from the licensor or made by the user, the implementation of other commercial activities, works, services).
3. The restrictions for the usage of complex business license contract in some areas of business shall be established by legislative acts.
Article 897. Form Of A Contract On Complex Business License
Complex business license contracts must be concluded in writing.
Article 898. Obligations Of The Licensor
The licensor shall within the period and to the extent specified in the contract transfer to the licensee technical and commercial documents and provide other information, necessary to the licensee to exercise the rights granted to him (her) under the contract, as well as provide training and advice to the licensee on matters relating to the implementation of these rights.
Contract may provide other obligations of licensor.
Article 899. Obligations Of The Licensee
Unless another is provided by the contract, the licensee shall: 1) use in the implementation of activities under the contract the license complex of the
licensor in the manner specified in the contract; 2) allow the licensor to his (her) production area, provide him (her) with the necessary
documentation and assist in obtaining the information, necessary to monitor the proper use of exclusivity;
3) follow all instructions and indications of the licensor concerning the nature, methods and conditions of use the transferred exclusive rights;
4) not disclose the production secrets of the licensor and the other confidential commercial information;
5) inform the buyers (customers) by the most obvious way for them, that he (she) uses the name, trademark, service mark or other means of individualization under the contract of a complex business license.
Article 900. Restrictive Conditions
1. Complex business license contract may provide restrictive (exclusive) conditions, in particular:
1) the obligation of the licensor not to grant other similar complex business licenses for their use in the territory, assigned to the licensee or refrain from immediate self-employment in this area;
2) the licensee's obligation not to compete with the licensor in the territory of application of a complex business license in respect of a business, carried on by the licensee with exclusive rights belonging to the licensor;
3) failure of the licensee to obtain other complex business licenses from competitors (or potential competitors) of the licensor;
4) the licensee's obligation to negotiate with the licensor the location of the premises, their external and internal design, used in the implementation of the agreement provided the exclusive rights.
2. Restrictive conditions of the contract of complex business license shall be invalid in cases where it is stated that:
1) the licensor is entitled to determine the licensee’s selling price of the goods or the price of works (services) performed (provided) by the licensee, or set an upper or lower limit of the indicated prices;
2) the licensee is eligible to sell goods, works or services only to a certain category of buyers (customers) or exclusively buyers (customers), who live (residence) on the territory specified in the contract.
Article 901. Licensor’s Responsibility To The Requirements Of The Licensee
Licensor is vicariously liable for the requirements, imposed on the licensee on the inadequate quality of goods (works, services), sold (performed or rendered) by the licensee under the contract of complex business license.
Article 902. Complex Business Sublicense
1. Complex business license contract may provide the licensee’s right to allow to use the granted to him (her) all or some of the exclusive rights to others on terms agreed with the licensor or defined by the contract.
2. The contract of complex business license may contain the licensee’s obligation to issue within a certain period of time, a certain number of sub-licenses, with or without an indication of the territory of their use.
3. The rules of principal contract between the licensor and licensee shall apply to the contract of complex business sublicense, unless otherwise stated from the features of contract on complex entrepreneurial sublicense.
Article 903. Dependence Of The Complex Business Sublicenses On The Principal Contract Between The Licensor And Licensee
1. Complex business sublicense contract cannot be concluded for a longer period than the main contract between the licensor and the licensee.
2. Termination of the contract of complex business license shall terminate all contracts of complex business sublicense concluded in accordance with it.
3. If the licensor's main contract with the licensee is invalid on the grounds stipulated by legislative acts, all the contracts of complex business sublicense concluded in accordance with it shall be invalid.
Article 904. Features Of Relationship Of The Licensor, Licensee And Sublicense
1. Unless another is provided by the contract of complex business license, in the early termination of it, the rights and obligations of the licensee under the contract of complex business sublicense shall transfer to the licensor.
2. The licensee shall be vicariously liable for the harm, caused to the licensor by the sublicensees’ actions, unless otherwise provided by the contract of complex business license.
Article 905. Continuance In Force Of The Contract At Change The Company Name
In case, when the licensor changes his (her) name, the contract of complex business license shall be valid for a new company name of the licensor, if the licensee does not require termination of the contract and compensation of losses. If the contract is saved, the licensee is eligible to demand a proportionate reduction of remuneration, payable to the licensor.
Article 906. Continuance In Force Of The Contract At Change One Or More Exclusive Rights To The Use
In cases in which the licensor changes one or more exclusive rights to the user, the contract of complex business license shall be valid for new exclusive rights of the licensor, if
the licensee does not require termination of the contract and compensation of losses. If the contract is saved, the licensee is eligible to demand a proportionate reduction of remuneration, payable to the licensor.
Article 907. Consequences Of The Termination Of The Exclusive Rights To The User
If during the period of the contract of complex business license, is expired any exclusive right, which is included under the contract in the set to the user, or this right is expired on another basis, the contract shall be valid, except for the provisions relating to the terminated right, and the licensee, unless another is provided by contract, is eligible to demand a proportionate reduction of remuneration, payable to the licensor.
Article 908. Termination Of The Contract Of Complex Business License
1. Complex business license contract concluded with the term may be terminated in accordance with the rules of this Code.
2. Party in the contract is entitled to refuse from the termless contract of complex business license, with notification of the other party six months before, unless the contract provides for a longer period of notice.
Article 909. Succession In The Contract Of Complex Business License
1. Transfer to another person of any particular exclusive right, which is included in the license complex, shall not be a reason to change or cancellation of the contract. The new owner enters into a contract to the rights and obligations, relating to the transferred exclusive right.
2. In case of death of the licensor-citizen, his (her) rights and obligations under the contract of complex business license shall transfer to the heir, if the latter is registered, or within six months from the date of opening of the inheritance shall be registered as an entrepreneur. Otherwise, the contract is terminated.
Administration of the license complex prior to the adoption of the successor the rights and obligations or to register the successor as an entrepreneur, is carried out by a trustee, who is appointed by a notary in the prescribed manner.
Chapter 46. Competitive Obligations
Article 910. Content Of The Competitive Obligation
1. This chapter regulates the competitive obligations, arising from the public promise of rewards, and obligations, arising under the tender, auction and other forms of trading, established by the legislative acts of the Republic of Kazakhstan.
Competitive obligations may also be regulated by other legislative acts of the Republic of Kazakhstan.
2. In competitive obligation, its initiator based on certain of the items and initial conditions of the competition, offers to attend an indefinite or a particular group of people, and agrees to pay the fixed fee to the winner and (or) enter into a contract, which is corresponding the content of competitive obligation.
3. Invitation to take part in the competition can be made by the tender initiator, either directly or through an intermediary, the contest organizer.
Rights and obligations of the intermediary are determined by his (her) contract with the initiator of the competition.
4. Competition may be open, when the proposal of the initiator to take part in the contest is addressed to everyone, by announcing in the press and other media, or may be closed, when the invitation to tender sent to specified people by the choice of the initiator of the competition.
5. Open competition may be provided by the preliminary qualification of its participants, when the initiator of the competition conducted pre-selection of individuals, who want to take part in the competition.
Footnote. Article 910 as amended by the Law of the Republic of Kazakhstan dated May 21, 2002 No. 323.
Article 911. Public Promise To Remuneration
1. Any person, who has announced publicly on the remuneration in cash or in another form for the best performance of work or achievement of other results, shall fulfill an obligation to a person, who in accordance with the terms of the competition is declared the winner.
2. Public promise to remuneration has to contain provisions, providing an essence of the task, the criteria and order of results, the amount and form of remuneration, and the order and timing of the announcement of results.
3. The decision to pay remuneration and its payment must be accepted and implemented within the promised time.
4. If the tender was announced for the creation of works of science, literature and art, a person, who gave a public promise, gets a preferential right to conclude the contract with the creator of the product for its use with the payment of the fee, unless another is provided by a public promise of reward.
5.A person, who gave a public promise of reward, shall be obliged to return the works, which are not awarded remuneration to their creators, unless otherwise provided by the terms of the contest.
Article 912. Cancel The Public Promise Of Remuneration
1. The person, who announced publicly the payment of remuneration, shall be entitled to the refuse the promise, if the announcement provides, or it implies the inadmissibility of refusal or is given a certain time limit for the action, for which the reward promised, or at the time of the announcement of refusal, at least one of the persons already implements actions, specified in the advertisement.
2. The cancellation of the public promise of remuneration shall not relieve the person, who announced the reward, from compensation to a person, the costs incurred in connection with the commission of prescribed declaration. The amount of compensation in all cases cannot exceed remuneration specified in the declaration.
Article 913. Features Of Conducting Of Lotteries, Sweepstakes And Other Games
1. The relationship of the state, administrative-territorial unit or a person, who has received from the authority a license to conduct lotteries, sweepstakes and other games based on chance, with a participant of these games is based on the contract. Such a contract is issued by granting a lottery ticket, receipt or other document and recognized as concluded since the payment of the games participant the cost of ticket or other payment for participation in the game.
2. Persons who, in accordance with the terms of the lottery, sweepstakes or other games are considered winners, shall be paid by the initiator (the organizer) of games the wining payment, under the conditions of the games in the amount, form (monetary or in kind) and terms, and if the time in these conditions was not specified, within ten days of the determination of the results of games.
3. In cases of breach the obligation specified in paragraph 2 of this Article by the games initiator (organizer), a participant, who won the lottery, sweepstakes or other games, is entitled to demand payment of winnings, as well as compensation for losses.
Article 914. Requirements Related To The Gaming And Betting And Participation In Them
The demands of citizens and legal entities, connected with the organization of the games or betting, based on risk (gambling and betting), or participation in them, subject to the
organizer of gambling with the terms of gambling and (or) betting, shall not be subject to judicial protection, except for claims arising out of the relations mentioned in Article 913 of this Code.
Footnote. Article 914 as amended by the Law of the Republic of Kazakhstan dated 04.05.2009 No. 157-IV (the order of enforcement see Art. 2).
Article 915. Tender
1. At the auction in the form of tender its initiator undertakes (the organizer) on the basis of proposed baseline conclude a contract (as a seller, buyer, customer, contractor, landlord, tenant, etc.) with the bidder, who offers the best for the initiator of tender terms and conditions.
2. Bidders, within the terms of its timing, refer to the initiator or the organizer of the tender proposals in writing with the application of all tender documentation. Conditions of the tender can provide proposals in a sealed envelope and under the motto.
Violation of the deadline for submission of proposals shall entail exclusion of the person, who missed the deadline, from the number of bidders, if the initiator or organizer does not notify in writing this person for admission to tender.
3. Choosing the winner among the participants is carried out by the initiator of a tender or tender commission created by him (her) in closed or open manner under the terms of the tender.
4. The tender may be declared invalid by its initiator, if it was attended by less than two participants or offers of participants of the tender are recognized by the initiator of the tender as dissatisfying the conditions of the tender.
5. The initiator of the tender signs the contract with the winner of the tender. In case of refusal of the initiator to conclude the contract with the winner, the winner of the tender may recover damages caused to him (her).
6. Conditions of the tender can be provided by making the guarantee fee of each tender participant, which shall be returned to participants after the results of the tender. The guarantee fee shall not be refundable, if the tenderer refuses from his (her) offer or modify it before the expiration of the tender.
The guarantee fee shall not be refundable to the winner of the tender, in the event, where the winner refuses to sign a contract with the initiator of the tender on terms, which are meeting proposals of winner.
Footnote. Article 915 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 916. Auction
1. In an auction the seller is obliged to sell the auction item to the bidder who offers him ( her) the highest price.
2. The auction can be conducted in the context of rising or falling the prices declared by the seller.
3. The terms of the auction, conducted by a fall in prices, may be provided by a minimum price at which the item can be sold.
4. The subject of the auction may be any movable or immovable property, which is not withdrawn from the civil turnover, including intellectual property, contracts and property rights, including import, export and other quotas and licenses.
5. Proposals for participation in the auction shall contain information about the subject of the auction, the time and place of the meeting.
6. Persons, wishing to participate in the auction, until the start of the auction, unless otherwise provided by the terms of the meeting, submit a request to participate in the auction and make a set amount of guarantee fee.
7. The auction may be held, if it shall be participated by at least two participants ( customers).
8. If the subject of the auction did not want to buy any of the participants, the initial price may be reduced or the subject can be removed from the auction.
9. Unless another is stipulated by the terms of the auction, with the bidder, who offered the highest price, is concluded a contract to sell him (her) a subject of the auction.
10. If the buyer refused to enter into a contract, under paragraph 9 of this Article, he (she) should be excluded from participation in the auction, the guarantee fee shall not be refunded, and the subject of the auction, from purchasing of which the buyer refused, could again be put up for auction.
11. For individuals who took part in the auction, but did not buy anything, the amount of the their guarantee fee shall be refunded.
For persons, who purchased any item in the auction, the amount of guarantee fee shall be credited against the purchase price.
Footnote. Article 916 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Chapter 47. Liabilities arising from injury Paragraph 1. General provisions
Article 917. General Basis Of Responsibility For Causing Harm
1. Harm (property and (or) non-property), caused by illegal actions (inaction) to the property or non-property rights and benefits of citizens and legal entities shall be compensated by the person, who caused the damage, in full.
To person, who is not a causer may, be imposed the duty of compensation and set a higher amount of compensation by legislative acts of the Republic of Kazakhstan.
2. A person who caused harm shall be exempted from its compensation, if he (she) proved that the damage was caused not by his (her) fault, except the cases, provided by this Code.
3. The damage caused by lawful actions shall be compensated in cases provided by this Code and other legislative acts.
Article 918. Prevention Of Causing Harm
1. The risk of harm in the future can be the basis for the suit to ban actions that create such a risk.
2. If the injury is a consequence of the operation of the enterprise, construction or other industrial activities, which also continues to cause harm or threaten new harm, the court may order the defendant, in addition to paying compensation for damages, to stop the activity.
The court may disallow the claim for termination of the related activity, if the termination is contradict to the public interest. The refusal to terminate such activity shall not deprive the victims of the right to compensation for damage caused by this activity.
Article 919. Causing Of Harm In Necessary Defense
Harm, caused in necessary defense shall not be compensated, if it is not exceeded its limits.
Article 920. Causing Of Harm In State Emergency
The damage, caused in a state of emergency, for elimination of danger to him(her)self or others, and if this danger under the circumstances could not be eliminated by other means, must be compensated by the person, who caused the harm.
Considering the circumstances under which such harm was caused, the court may impose the duty to refund to a third person, for whose benefit the act caused harm, or to the third party or harm-doer in the share order, and to release from the compensation of damage in whole or in part as this third person, and the person, who caused harm.
Article 921. Liability Of A Legal Entity Or Citizen For Harm, Caused By His (Her) Employee
1. A legal entity or citizen shall compensate the damage, caused by his (her) employee in the performance of employment (employment, official) duties.
2. Regard to the provisions of this Code on liability for commission of the injury by employees, recognized the citizens performing work under an employment contract, as well as on the basis of a civil contract, if they acted or should have acted on the instructions and under the supervision of the legal entity or citizen, who is responsible for the safe operation.
Business partnerships, joint stock companies and production cooperatives compensate the damage, caused by their participants (members) in the implementation of the latest business, industrial or other activities of the partnership, corporation or cooperative.
Footnote. Article 921 as amended by the Law of the Republic of Kazakhstan dated May 15, 2007 No. 253.
Article 922. Liability For Damage Caused By The State Authorities, Local Authorities And Their Officials
1. The harm, caused by publication of acts of the public authorities, which are unconformable to the legislation, shall be compensated upon a court decision, regardless of the fault of agencies and officials, who issued the act. Harm shall be compensated at the expense of the state treasury. A representative of the Treasury is financial authorities or other bodies and individuals on special assignment.
2. Local self-government bodies are responsible for damage, caused by their bodies and officials, in a judicial proceeding.
3. Damage, caused by unlawful actions (inaction) of public officials in the administration governance shall be compensated on the same basis (Article 917 of this Code) at the expense of money, which is at the disposal of the bodies. With their lack the harm shall be subsidiarily reimbursed by the state treasury.
Article 923. Responsibility For The Damage Caused By Unlawful Actions Of The Investigating Agencies, Preliminary Investigation, Prosecution And Courts
1. The harm caused to an individual, as a result of unlawful conviction, unlawful criminal prosecution, unlawful use as a measure of preventive detention, house arrest, recognizance not to leave, unlawful imposition of an administrative penalty in the form of detention or correctional labor, illegal placement in a psychiatric or other medical institution shall be reimbursed by the state in its entirety, regardless of the guilt of the persons of inquiry, preliminary investigation, prosecution and court, in accordance with the legislation.
2. The harm caused to an individual or entity as a result of other illegal activities of the investigating agencies, prosecutors, shall be refunded on the grounds and in the manner provided by Article 922 of this Code.
3. Harm caused by unlawful actions (inaction) of judges and other court employees in the exercise of justice, except as provided in paragraph 1 of this Article shall be compensated on the same basis and in the manner prescribed by paragraph 3 of Article 922 of this Code.
Article 924. Compensation Of The Harm By The Person, Who Has Insured Responsibility
A legal entity or citizen, who has insured his (her) liability in voluntary or compulsory insurance and in case of insufficiency of the insured sum for the full recovery of damage shall reimburse the difference between the insured amount and the actual amount of damage.
Article 925. Responsibility For The Damage, Caused By Minors At The Age To Fourteen
1. For damage, caused by a minor under the age of fourteen (juvenile), meet their legal representatives, unless they prove that the damage was their fault.
2. If a juvenile, who needs care, was at an appropriate educational institution, medical facility , social welfare body, or other similar institutions, which by law is a guardian, then this institution is obliged to compensate the damage caused by the minor, unless the institution can prove that the damage was not the fault of the juvenile under its care.
3. If a minor, injured in the time, when he (she) was under the supervision of the educational institution, educational, medical or other institution, which are obliged to implement supervision over him (her), and the person, who is required to supervise according to the contract, the institutions and persons shall be responsible for the damage, unless they prove that the damage was not their fault in the supervision.
4. The duty of legal representatives, educational institutions, educational, medical and other institutions on compensation of damage shall not stop with the achievement of minor the age or getting their property sufficient to redress.
If the legal representative died or they, and other citizens, specified in paragraph 3 of this Article, do not have sufficient funds for compensation of damages, caused to life and health of the victim, and if the causer, who became fully capable, has such means, the court, in view of the property status of the victim and the injurer, and other circumstances, may decide the compensation of damages in full or in part by the property of the causer.
Footnote. Article 925 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 926. Responsibility For The Damage, Caused By Minors Under The Age To Fourteen
1. Minors under the age of fourteen to eighteen shall bear responsibility for the damage that they cause personally.
2. When a minor between the ages of fourteen and eighteen years, have no property or other sources of income sufficient for compensation, the harm must be compensated in full or in the missing part by his (her) legal representatives, if they can prove that the damage was not their fault .
If a minor under the age of fourteen to eighteen, who is in need of care, is in the appropriate educational, medical, social welfare, or other similar institutions, which by law is his (her) guardian, the institutions shall be required to fully compensate the damage or missing parts, if they prove that the damage was not their fault.
3. The duty of the legal representatives and the institution to compensate for damage, shall terminate on reaching the causer adulthood, or when he (she) shall have the property or other sources of income, sufficient for compensation, or when he (she) got up capacity prior the legal age (paragraph 2 of Article 17, Article 22-1 of this Code).
Footnote. Article 926 as amended by the Law of the Republic of Kazakhstan dated 12.01.2007 No. 225 (shall be enforced from the day of its official publication), dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 927. The Responsibility Of Parents, Deprived Parents From Parental Rights, For The Damage Caused By Minors
To the parent, who has been deprived parental rights over their children, the court may place the responsibility for the damage, caused by his (her) young children within three years after the deprivation of parental rights, if it is determined, that the child's behavior that has caused harm was caused by the child’s improper upbringing under its parents.
Article 928. Responsibility For The Damage Caused By A Citizen, Who Is Deemed As Incompetent
1. The damage, caused by a citizen, who is deemed as incompetent (Article 26 of the Code), shall be compensated by his (her) guardian, or an organization pledged to implement supervision over him (her), unless they can prove that the damage was not their fault.
2. Responsibilities of the guardian or organization to compensate for damage, caused by the citizen deemed as incompetent, shall not stop in the case of recovery of his legal capacity.
3. If a guardian has died or does not have sufficient funds for compensation, and the incompetent citizen has such means, the court due to the property of the victim and the injurer , and other factors, in particular, restoring the capacity of the causer, is entitled to decide on compensation for damage, caused to life and health of the victim, in whole or in part from the property of the causer.
Article 929. Responsibility For The Damage Caused By A Citizen, Who Is Deemed As Having Limited Capability
The damage, caused by a citizen deemed as having limited capability due to the abuse of alcohol or drugs (Article 27 of this Code) shall be reimbursed by the citizen responsible for damages in the general procedure.
Article 930. Responsibility For The Damage Caused By A Citizen, Who Is Not Able To Understand The Significance Of Their Actions
1. A capable citizen, as well as a minor between the ages of fourteen to eighteen, who caused harm in such a state, when they could not understand the significance of their actions or control them, shall not be responsible for damage caused by them.
If the harm caused to the life or health of the victim, the court may, due to the personal property of the victim and the injurer, as well as other circumstances, obligate the injurer to compensate for damage in whole or in part.
2. Causer is not relieved from liability if he (she) brought him(her)self into such a state by consumption of alcoholic beverages, drugs, or other means.
3. If damage is caused by a person, who could not understand the significance of his (her) actions or control them due to mental illness or dementia, the duty to compensate for harm may be imposed by the court on living together with the person his (her) working spouses, parents, adult children, who are aware of the condition of the causer, but did not put the issue of recognition of incapacity, and the establishment of guardianship over him (her).
Article 931. Responsibility For The Damage Caused By A Activity, Creating Greater Danger To Others (Source High Risk)
1. Legal entities and individuals, whose activities are associated with increased risk to others (transport companies, industrial enterprises, construction sites, vehicle owners, etc.) are required to compensate the damage caused by the source of danger, unless it is proved that the damage was due to force majeure or intent the victim.
The duty on compensation of damages is imposed to a legal entity or citizen, who possesses a source of high danger on the right of property, the right of economic management or operational control, or on any other legal grounds (tenancy agreement, power of attorney to the vehicle control, by order of the competent authority of transfer of power, etc.).
2. Owners of sources of high danger are jointly and severally liable for the damage caused by the interaction of sources (vehicle collisions, etc.) to third parties on the grounds provided by paragraph 1 of this Article.
The damage, caused by the interaction of sources of increased danger to their owners shall be compensated on the same basis. In this case:
1) damage caused by the fault of one party shall be reimbursed in full by that party; 2) the damage caused by the fault of the two or more parties shall be compensated in
proportion to the degree of fault of each. If it is impossible to determine the degree of fault of each party, the responsibility shall be
shared between them equally. None of the parties has the right to demand compensation without fault of the parties in
causing harm. Each party in such a case bears the risk of incurred losses. 3. The owner of an entity that can be of high danger is not responsible for damage caused
by this source, if he (she) proves that the this entity is not in his possession as a result of wrongful acts of others. In such cases, the liability for damage, caused by a source of increased danger shall be the persons, who have illegally taken possession of the entity. In case of fault of the owner in the wrongful seizure of his (her) possession of the source of increased danger, liability may be imposed either on the owner and to persons have seized the dangerous entity.
Article 932. Responsibility For The Cooperative Caused Harm
Persons, together causing harm to the victim meet jointly. According to the statement of the victim and his or her interest, the court may impose on
persons, who jointly caused harm, several liability.
Article 933. Right Of Recourse To The Person Who Caused The Harm
1. The person, who compensates for the damage caused by another person (the employee in the performance of labor (employment, official) duties, such as a person driving a vehicle as part of his employment, etc.), is entitled to counter demand (regress) to the person in the amount of the consideration payment, unless another amount is established by legislative acts.
2. Harm-doer, who has compensated the damage together, is entitled to demand a share of compensation from each of the causer, paid to the victim in an amount corresponding to the degree of fault of the causer. If it is impossible to determine the degree of fault, the shares shall be deemed as equal.
3. The state, which has compensated the damage caused by officials of the investigating agencies, prosecutors and courts (paragraph 1 of Article 923 of this Code), has the right of recourse from these persons in cases, where guilt of such persons set by a court verdict, which become effective in law.
4. The person, who compensates for harm on the grounds specified in Articles 925 - 928 of this Code shall not have recourse (recourse) to the person who caused the harm.
Article 934. Way Of Compensation Of Property Damage
Satisfying the requirements for damages, the court in accordance with the circumstances of the case, requires the person responsible for the damage, to fully compensate the loss or to compensate it in kind (to provide the same kind of thing, to fix the damaged item, etc.).
Article 935. Accounting Fault Of The Victim Or Property Status Of The Person, Who Caused Harm
1. Damage that is caused from the intent of the victim shall not be reimbursed. 2. If the gross negligence of the victim contributed to the occurrence or increased the
extent of damage, and depending on the degree of fault of the victim and the harm-doer, the amount of compensation should be reduced.
3. In the case of gross negligence of the victim and absence of fault of the injurer, in cases , when his (her) liability shall be incurred regardless of fault, the amount of compensation should be reduced or compensation of damages may be refused, if the legislation provides otherwise. When there is damage to life and health of a citizen, complete refusal for compensation shall not be allowed.
4. The fault of the victim shall not be included in the reimbursement of additional costs ( Article 937 of this Code), compensation for damages to persons, who have suffered damage as a result of the citizen's death (Article 940 of this Code), as well as compensation for funeral expenses (Article 946 of this Code).
5. The court may reduce the amount of compensation for damage, caused by the citizen, accounting his (her) property status, except in cases, where harm is caused by the acts, committed intentionally.
Paragraph 2. Compensation for damage to life and health of the citizen
Article 936. Compensation for damage to life and health of the citizen in the exercise of Contractual and other obligations
Damage to life and health of citizens in the exercise of contractual obligations, labor ( official) duties, responsibilities of military service, shall be compensated according to the rules of this chapter if the legislative acts or the contract provides increased responsibility.
Article 937. The Amount And Nature Of Compensation For Harm Caused By The Injury To Health
1. When causing of injury to a person or his (her) health, the loss of earnings (income), which he (she) had or could definitely have, and expenses caused by the injury (for treatment,
additional food, purchase of drugs, prosthetics, nursing care, spa treatment, purchase of special vehicles, training for another profession, etc.) shall be reimbursed, if it considers that the victim needs theses of assistance and care and not getting them for free.
In determining the lost earnings (income), the disability benefits, assigned to the victim due to injury or other impairment of health, and others of benefits that are assigned, both before and after the damage to the health and pension payments shall not be counted as compensation. On account of reparation is not counted income, received by the victim after the injury to health.
3. Legislative acts or the contracts may increase the size and the amount of compensation payable to the victim in accordance with this Article.
Article 938. Definition Of Earnings (Income), Lost As A Result Of Injury To Health
1. The amount of compensation of lost earnings (income) is defined as a percentage of average monthly earnings (income) prior to injury or other harm to health or the onset of disablement, appropriate to the degree of loss to victims of occupational ability, and in the absence of it - total disability.
2. The composition of lost earnings (income) includes alls of remuneration under labor and civil contracts as in major workplace and secondary job, which are taxable by personal income tax. Lump sum payments shall not be taken into account (compensation for unused leave, dismissal compensation, etc.). Benefits, paid during the period of temporary disability and maternity leave shall be recognized. Income from business activity, as well as the author’ s royalties shall be included in lost wages, and income from business activity are included on the basis of the tax authority.
Alls of earnings (income) are recognized in the amounts, assessed before tax deduction. 3. Average monthly earnings (income) is calculated by dividing the total earnings (income
) for the twelve months of operation, prior to the injury to health or the onset of disability, to twelve. In the case, when the victim at the time of injury, worked less than twelve months, the average wage (income) is calculated by dividing the total amount of earnings (income) for the number of actually worked months, before damage to health, by the number of these months.
Victim’s not fully worked months at his (her) request shall be changed by the previous fully worked months or excluded from the calculation, if it is impossible to replace them.
4.In the case, where the victim at the time of the injury was not working, by his (her) desire, accounting the earning, prior to dismissal or regular remuneration of the employee's of his (her) skills in this area, but not less than ten times established by the legislative acts of the monthly calculation index, shall be paid the remuneration.
5. If the earnings (income) of the victim is changed for improving his (her) property status , (increased wages for the position, transferred to a better paying job, went to work after graduation, and in other cases, where shall be proved the stability of change or the possibility
to change pay to the victim) prior to injury or other damage to health, in the determination of his (her) average monthly earnings (income) shall include only the earnings (income), which he (she) has received or should have received after the appropriate changes.
6. Increasing by the employer, who is liable for the damage, the average wage of an employee of the same profession and qualification, shall be recalculated the amounts of compensation for lost earnings (income), determined by percentage to the increased average monthly earnings (income), corresponding to the degree of loss of victims of occupational capacity and in the absence of it - total disability.
Footnote. Article 938 as amended by the Laws of the Republic of Kazakhstan dated 24.12.2001 No. 276, dated 30.03.2011 No. 424-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 939. Compensation Of Damage During Injury To Health Of A Person, Under The Age Of Majority
1. In the case of injury or other damage to the health of a minor, who is less than fourteen years of age (minor) and has no earnings, the persons, who are responsible for the damage is required to reimburse the costs associated with the injury.
2. Upon the victim reaching fourteen years of age, and in the case of injury to the minor at the age of fourteen to eighteen years of age, who does not have earnings (income), the persons, responsible for the damage, shall compensate the victim, in addition to expenses caused by damage to the health, the harm related with loss or reduction of his (her) ability to work, on the basis of a ten-fold established by legislative acts monthly calculation index.
If at the time of injury to health, a minor has earnings, the damage shall be compensated based on the amount of the earnings, but not less than ten times established by the legislative acts of the monthly calculation index.
After starting to work, the victim is entitled to demand increasing the compensation of damage, based on the income he (she) receives, but no lower than the fees, set by his (her) position or earnings of the employee the same qualification at his (her) place of work.
Footnote. Article 939 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 940. Compensation For Harm To Persons, Who Suffered Damage From The Death Of A Citizen
1. In the case of death of a citizen, the right to compensation shall have disabled persons, who were dependent on the deceased or had the day of his (her) death, the right to receive maintenance from him (her) and the child of the deceased, born after his death, as well as a parent, spouse or other family member, regardless of disability, who does not work and is
busy taking care of the dependents of the deceased's children, grandchildren, brothers and sisters, who have not attained the age of fourteen (juvenile) or through have reached that age, but, in the opinion of medical authorities need for health in a nursing care.
2. The right to compensation has also the persons, who were dependent on the deceased citizen and become disabled for five years after his (her) death.
One parent, spouse or other family member, who is idle and busy by care of persons, specified in paragraph 1 of this Article children, grandchildren, brothers and sisters of the deceased, and became unable to work during the period of care, reserve the right to compensation after the care of these individuals.
3. Damage is compensated to: minor - until the age of eighteen; students aged eighteen years and over - until the end of study at institutions on full-time education, prior to twenty-three years, women over fifty-eight years and men over sixty-three years - for life; disabled persons - for a period of disability, one parent, spouse or other family member, who is busy by taking care of the dependents, the deceased's children, grandchildren, brothers and sisters - until they reach the age of fourteen or changing their health status.
Footnote. Article 940 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 941. The Amount Of Compensation For Harm Caused By The Death Of A Citizen
1. Persons, who are entitled to compensation for the death of a citizen, the damage shall be compensated in the amount of the share of earnings (income) of the deceased, calculated according to the rules of Article 938 of this Code, which they received or were entitled to receive on their contents during his (her) lifetime. In determining compensation for the harm to these individuals, to the income of the deceased, along with earnings included pension, permanent alimony and other similar payments, received by him (her) in the lifetime.
2.In determining the amount of compensation for injury benefits, appointed to persons on loss of breadwinner, others of benefits that are assigned, both before and after the death of the breadwinner, and income, scholarships, pensions shall not be counted.
3. The amount of compensation, designated for every person, who is entitled to compensation for damage on loss of breadwinner, shall not be recalculated, except birth after the death of breadwinner; destination (termination) of the payment of compensation to persons, who engaged in the care of children, grandchildren, brothers and sisters of the deceased breadwinner.
Legislative acts or the contract may increase the size and amount of compensation.
Article 942. Changing The Amount Of Compensation For Damage
1. The victim, who is partially-disabled, is entitled at any time to require the person, who is obligated to compensation, the corresponding increase amount of compensation, if his (her) ability to work has decreased due to the caused injury to health, in comparison with the condition, that was at the time of award of the compensation .
2. Persons, who are obligated to compensation for harm, caused to injury the health of the victim, is entitled to require a corresponding reduction the amount of compensation, if the victim’s ability to work has increased in comparison with the condition that was at the time of the award of compensation for the damage.
3. The victim has the right to demand an increase the amount of compensation for harm, if the financial situation of the citizen, who is responsible for compensation of damage improved, and the amount of compensation was reduced in accordance with paragraph 5 of Article 935 of this Code.
4. The court may, at the request of the citizen, who does harm, reduce the amount of compensation for harm, if his (her) property status due to disability or reaching retirement age deteriorated in comparison with the condition that was at the time of the award of compensation for the harm (paragraph 5 of Article 935 of this Code).
Article 943. Increase In Compensation Of Damage In Connection With An Increase In The Cost Of Living
Footnote. Title of Article 943 as amended by the Law of the Republic of Kazakhstan dated 30.03.2011 No. 424-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
The amounts of compensation, paid to citizens in connection with the injury to the health or death of the victim, shall be indexed in the order established by legislative acts in the case of increasing the cost of living.
With increasing by the legal procedure a minimum wage of compensation for lost earnings (income), other fees, which are awarded in connection with the injury to health and death of the victim, shall be increased in proportion to increasing the minimum wage (Article 283 of this Code).
The amount of compensation for lost earnings (income), other fees, which awarded in connection with the injury to health or death of the victim, and payable under the contract of compulsory insurance, shall be increased in proportion to the consumer price index for the previous year.
Footnote. Article 943 as amended by the Law of the Republic of Kazakhstan dated 30.03.2011 No. 424-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 944. Payments To Compensate For Damage
1. Compensation for the harm, associated with reduced disability or death of the victim, shall be paid by monthly installments.
If there are valid reasons, the court taking into account opportunities of the harm-doer may, at the request of a citizen, who is entitled to compensation, award due to him (her) payments one time, but no more than three years.
2. Charging additional costs may be made for the future within the time limits, established by the conclusion of the medical examination, and if necessary pre-payment for the services and property (purchase tickets, travel expenses, payment of special vehicles, etc.).
3. In cases, where the victim in accordance with the laws may require the termination or early fulfillment of the obligation, the requirement shall be satisfied by way of capitalization of corresponding time payments.
Article 945. Compensation In Case Of Dissolution Of Legal Entity
1. In the case of reorganization of a legal entity, which is recognized by the established procedure as responsible for the damage, caused to life and health, the responsibility for the payment of the fees shall bear his (her) successor. Special requirements for compensation of damages are imposed to it.
2. In the case of liquidation of a legal entity, which is recognized by the established procedure as responsible for the damage, caused to life and health, the corresponding payments shall be capitalized for the payment to the victim under the rules, established by legislative acts or other regulations.
3. In cases, where the capitalization of payments cannot be made due to the lack or insufficiency of the property of the liquidation of the legal entity, the awarded sums shall be paid by the State to the victim in the order established by the legislation.
4. After the period of capitalization of payments for compensation of damage, caused to life and health of the employees by the legal entities, which are liquidated due to bankruptcy, a citizen of the Republic of Kazakhstan shall be provided by monthly payments in accordance with the procedure established by the Government of the Republic of Kazakhstan.
Footnote. Article 945 as amended by the Law of the Republic of Kazakhstan dated 30.03.2011 No. 424-IV (shall be enforced from 01.01.2011).
Article 946. Reimbursement Of Expenses For Funeral
The persons who are responsible for the harm, associated with the death of the victim, shall be obliged to reimburse the expenses for the burial to the person, who has borne these costs.
Funeral benefit, received by citizens, who have incurred these expenses, shall not be counted in respect of compensation for damage.
Paragraph 3. Compensation for Damage Caused as a result of Deficiencies in Goods, Works and Services
Article 947. Grounds For Compensation For Damage Caused By Deficiencies Of Goods, Works And Services
Damage to life, health or property of the person or property of a legal entity as a result of design, prescription, or other defects of the goods (works, services), as well as due to inaccurate or incomplete information on the goods (works, services) shall be reimbursed by the seller or the manufacturer (executor) regardless of their guilt, and on whether the victim was with them in a contractual relationship, or was not. This rule shall apply only in cases of purchase of goods (works, services) for consumer applications.
Article 948. Persons, Who Are Responsible For The Damage Caused By Defects Of Goods, Works And Services
1. The harm, caused by defects of the goods shall be compensated at the option of the victim by the seller or manufacturer of the goods.
2. The harm, caused by defects of the work or services shall be compensated by their executors.
3. The harm, caused as a result of failure to provide the complete or reliable information about the properties and rules of using a product (work, service) shall be compensated in accordance with the rules of paragraphs 1 and 2 of this Article.
Article 949. The Periods Of Compensation For Damages, Caused As A Result Of Defects Of The Goods, Works And Services
1. Harm, caused by defects of the goods (works, services), shall be refundable, if it is caused within the stated term of validity (service life) of goods (works, services), and if the expiry date (the service) is not set - for ten years from the date of manufacture of the goods ( works, services).
2. Beyond the date, specified in paragraph 1 of this Article, the damage shall be refundable:
1) if the violation of the laws, the expiration date (the service) is not installed; 2) if the buyer (customer) is not warned about the necessary actions after the expiry date (
the service) and the possible consequences for non-compliance with such actions.
Article 950. Grounds For Exemption From Liability For Damage, Caused By Defects Of The Goods, Works And Services
The seller or manufacturer of the goods, executor of works or services shall be released from liability only in cases, if they can prove that the damage was caused due to force majeure or violation by the consumer the rules for using (results of work, services) or storage of goods.
Paragraph 4. Compensation of moral damage
Article 951. Compensation Of Moral Damage
1. Moral damage refers to the violation, impairment or deprivation of personal non-property welfare and rights of individuals, including mental or physical suffering ( humiliation, anger, melancholy, displeasure, shame, despair, physical pain, lameness, discomfort, etc.) experienced (suffered, experienced) by the victims on the offense, committed against him (her).
2. Moral damage shall be refundable by the instigator when the instigator was clearly guilty, except in cases, provided by paragraph 3 of this Article.
3. Moral damage shall be refundable, regardless of the fault of the causer, in the following cases:
1) damage, caused to the life and health of citizens by a source of danger; 2) damage, caused to a citizen as a result of his (her) unlawful conviction, unlawful
criminal prosecution, unlawful use as a measure a preventive detention, house arrest or recognizance not to live, unlawful imposition of an administrative penalty in the form of arrest, illegal placement in a psychiatric hospital or other facility;
3) the harm, caused by the spread of information discrediting the honor, dignity and business reputation;
4) other cases stipulated by legislative acts. 4. Moral damage, caused by the actions (inaction) that violate the property rights of
citizens are non-refundable, except in cases provided by legislative acts. Footnote. Article 951 as amended by the Law of the Republic of Kazakhstan dated
25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 952. The Amount Of Compensation For Moral Damage
1. Moral damage shall be compensated in cash. 2. In determining the amount of moral damage, taking into account a subjective
evaluation of gravity of moral damages caused to victims, and objective data, which are the evidence of the degree of moral and physical suffering of the victim: the vital importance of the benefits, which is the former object of abuse (life, health, honor, dignity, freedom, inviolability of home etc.), severity of the offense (the murder of close relatives, bodily injury
that resulted in disability, imprisonment, loss of job or home, etc.), the nature and scope of dissemination of false information, defamatory, the living conditions of the victim (service, family, household, financial, health, age, etc.), and other relevant circumstances.
3. Moral damages shall be compensated, regardless of the reimbursable damage of the property.
Chapter 48. Obligations of Unjust Enrichment
Article 953. Obligation To Return Unjust Enrichment
1. Person (buyer), who without the legislation or transaction basis purchased or saved property (unjustly enriched) for the account of another person (the victim), shall return to the latter unjustly acquired or saved property, except the cases provided by Article 960 of this Code.
2. Duty, established by paragraph 1 of this Article, shall also be, if the basis on which the property is purchased or saved, then returned.
3. The provisions of this Chapter shall apply, regardless of whether unjust enrichment was the result of the behavior of the purchaser of the property, the victim or a third party or result of an event.
Article 954. Correlation Of Requirements For The Return Of Unjust Enrichment With Other Requirements On The Protection Of Civil Rights
Unless otherwise provided by this Code and other legislative acts, and followed from the nature of appropriate relations, the rules of this Chapter shall also apply to the requirements:
1) on the return of the executed, under an invalid transaction; 2) on the recovery of the property by the owner from the illegal possession of another
person; 3) one party to another party in the obligation of return of the executed in connection with
this obligation; 4) for compensation of damages, including the harm, caused by the inequitable conduct of
the enriched person.
Article 955. Return Of Unjust Enrichment In Kind
1. Property, comprising the unjust enrichment of the purchaser, must be returned to the victim in kind.
2. The purchaser is responsible for all to the injured, including a random shortage or deterioration of unjustly acquired or saved property, which occurred after he (she) knew or
should have known of unjust enrichment. Up to this point, he (she) is responsible only for intent and gross negligence.
Article 956. Compensation Of Value For Unjust Enrichment
1. In the case, if it is impossible to return in kind unjustly received or saved property, the purchaser must compensate the victim for the real value of the property at the time of purchase it, as well as to compensate for losses, caused by the subsequent change the value of the property, if the purchaser has not reimbursed the cost immediately after he (she) has known of the unjust enrichment.
2. A person, who temporary uses of another's property (without intention to buy it) or foreign services, must compensate the victim the property, which he (she) has saved as a result of such use, at the price, prevailing at the time, when he (she) finished using, and in the place where it happened.
Article 957. The Consequences Of Unjustified Release Of The Transferred Right To Another Person
The person, who transferred through the assignment of a claim or otherwise his (her) right to another person on the basis of non-existent or invalid obligations, shall be entitled to require re-establishment and the return of the documents, which are certified the transferred right.
Article 958. Compensation Of Lost Income To The Injured
1. A person, who is unjustly received or saved property, shall return or compensate the victim all the revenue, which he (she) has received or should have received from this property from the time when he (she) knew or should have known of the unjust enrichment.
2. In the amount of unjust monetary enrichment is charged forfeit for using of borrowed money from the time, when the purchaser knew or should have known about unjust receipt or saving money.
Article 959. Reimbursement Of Expenses For Returnable Property
When returning unjustly received or saved property (Article 955 of this Code) or reimbursement of its value (Article 956 of this Code), the purchaser is entitled to demand compensation from the victim of the incurred necessary expenses for the maintenance and preservation of property, from the time he (she) is obliged to return the proceeds (Article 958 of this Code), by deduction of the received benefits. The right to reimbursement shall be lost, when the purchaser kept the returnable property deliberately.
Article 960. Unjust Enrichment
The property cannot be returned as unjust enrichment when: 1) the property, transferred in discharge of obligations before the time of execution, if the
obligation is not provided another; 2) the property, transferred in discharge of obligations at the end of the period of
limitation; 3) the amount of money and other property, provided to the citizen, in the absence of
unfairness on his (her) part, as means of existence (wages, royalties, compensation for damages to life or health, pension, child support, etc.) and used by the acquirer;
4) the amount of money and other property, granted pursuant to non-existent liabilities, if the purchaser can prove that the person, who is claiming the return of property was aware of no obligation or provided property to charity.
Section 5 Intellectual property rights Chapter 49. General provisions
Article 961. Objects Of Intellectual Property Law
1. The objects of intellectual property law are defined as: 1) the results of intellectual creative activity; 2) the means of individualization the participants of the civil turnover, goods, works or
services. 2. The results of intellectual creative activity are: 1) works of science, literature and art; 2) the performance, production, phonogram and transmission of broadcasting and cable
broadcasting; 3) inventions, utility models, industrial designs; 4) selection achievements; 5) integrated circuit topographies; 6) undisclosed information, including trade secrets (know-how); 7) other results of intellectual creative activity in the cases, provided by this Code or other
legislative acts. 3. Means of individualization of the participants of civil turnover, goods, works and
services are: 1) brand names; 2) trademark (service mark); 3) designation of origin (indication of origin); 4) other means of individualization other participants of civil turnover, goods and services
in the cases, provided by this Code and other legislative acts.
Footnote. Article 961 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Article 2 of the Law).
Article 962. The Grounds Of The Rights To Intellectual Property
Rights to intellectual property arises by virtue of their creation or as a result of legal protection by the authorized state body in the cases and in the manner provided by this Code and other legislative acts.
Article 963. Personal Non-Property And Property Rights To Intellectual Property
1. To the authors of intellectual creativity belong the personal non-property and property rights which are related these results.
The personal non-property rights of the author, regardless of his (her) property rights, shall retain, in case of transfer of his (her) property rights to the results of intellectual creative activity to another person.
2. To the holders of the right to the means of individualization of participants of civil turnover, goods or services (hereinafter - the means of identification) belong the property rights, related with these resources.
3. Right of the author for the results of intellectual creative activity (copyright) is a private non-property right and belongs only to the person, whose creative work created the result of intellectual creativity.
The right of authorship is inalienable and non-transferable. If the result is created by jointly work of two or more persons, they are considered as
co-authors. For certain objects of intellectual property, legislation may limit the persons, who are considered as co-authors of work as a whole.
Article 964. Exclusive Rights To The Objects Of Intellectual Property
1. The property right of the owner to use an object of intellectual property in any way as they see fit are recognized as exclusive rights to results of intellectual creative activity or means of individualization.
Using the object of exclusive rights by other persons shall be with the consent of the holder.
2. Owner of the exclusive rights to intellectual property is entitled to transfer this right to another person in whole or in part, permit to use an object of intellectual property and dispose of it in any other way, unless it is contrary to the rules of this Code and other legislative acts.
3. Limitations of exclusive rights, the recognition of these rights invalid and their termination (cancellation) is permitted only within the procedure prescribed by this Code and other legislative acts.
Article 965. Transition Of The Exclusive Rights To Another Person
1. Exclusive rights to intellectual property, unless another is provided by this Code or other laws, can be transferred by their owners whole or partly under the contract to another person, and pass into way of universal succession by inheritance, and as a result of reorganization of legal entity-owner.
Transfer of exclusive rights shall not restrict the right of authorship and other non-property rights. Terms of the contract on transfer or limitation of such rights are not valid .
2. To the contract, which is providing the exclusive rights during its validity to another person for a limited period shall be applied the rules of the license agreement (Article 966 of this Code).
Article 966. License Agreement
1. Under a licensing agreement, the party who is owner of the exclusive rights to the results of intellectual creative activity or means of individualization (licensor), grants the other party (the licensee) the right to temporarily use the appropriate object of intellectual property in a certain way.
The license agreement is refundable. 2. License agreement may include the provision of a licensee with: 1) the right to use the intellectual property with saving to the licensor the possibility to use
it and the right to grant license to third parties (a simple, non-exclusive license); 2) the right to use the intellectual property with saving to the licensor the possibility to use
it, but without the right to grant license to third parties (exclusive license); 3) other conditions for use of intellectual property, which do not contradict to the
legislative acts. If the license agreement does not provide otherwise, the license is simple (non-exclusive).
3. Agreement, where the licensee grants the right to use the intellectual property to another person is recognized as the sublicense agreement. The licensee is entitled to conclude a sub-license agreement only in the cases stipulated by the license agreement.
The licensee shall be responsible to the licensor for the actions of sub-licensee, unless the licensing agreement provides otherwise.
Article 967. An Agreement On The Creation And Use The Results Of Intellectual Creative Activity
1. The author can accept contractual obligation to create the work, invention, or other results of intellectual creative activity and provide to the customer, who is not his (her) employer, the exclusive rights to use it.
2. The contract, provided in paragraph 1 of this Article, shall determine the nature of the result, which shall be the creation of intellectual creative activity, as well as purposes or methods of its use.
3. Terms of the contract, which are limiting the right of the author to create the results of intellectual creative activity of a certain or in a particular area are not valid.
Article 968. Exclusive Right And Right Of Property
Exclusive rights to the results of intellectual creative activity or means of individualization, exist independently of the ownership right to the material object, in which such a result or means of individualization are expressed.
Article 969. Period Of Exclusive Rights
1. The exclusive right to intellectual property shall be valid for the period provided by this Code or other laws.
Legislation may provide the extension of such period. 2. Personal non-property rights to the results of intellectual creative activity shall be valid
for indefinite period. 3. In cases stipulated by legislative acts, the action of the exclusive right may be
terminated due to non-use of it over time.
Article 970. Ways To Protect The Exclusive Rights
1. Protection of exclusive rights provided by Article 9 of this Code. Protection of exclusive rights can be made also by:
1) removal of material objects, in which the exclusive rights are violated, and the material objects, created as a result of such violation;
2) the mandatory publication of committed violation, including the information about the owner of the infringed right;
3) other means provided by the legislative acts. 2. In breaching of contracts on the use of the results of intellectual creative activity and
means of individualization shall be applied the general rules on liability for breach of obligations (Chapter 20 of this Code).
Chapter 50. Copyright law
Article 971. Copyrighted Works (Subject Matter Of Copyright)
1. Copyright applies to works of science, literature and art, which are the result of creative activity, regardless of their purpose, content, and dignity, and the mode or form of their expression.
2. Copyright applies to both published (published, released, published, publicly performed , publicly displayed), and the unpublished works, which are existing in an objective form:
1) written (manuscript,written text, musical score, etc.); 2) oral (public pronouncing, public performance, etc.); 3) sound or video recording (mechanical, digital, magnetic, optical, etc.); 4) image (drawing, design, painting, plan, scheme, film, television, video, or photo frame,
etc.); 5) three-dimensional (sculpture, model, layout, construction, etc.); 6) other forms. 3. The part of the work (including its title, the names of the characters), which has the
characteristics specified in paragraph 1 of this Article, and can be used alone, is the subject matter of copyright.
4. Copyright does not apply to their own ideas, concepts, principles, methods, systems, processes, discoveries and facts.
Footnote. Article 971 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 972.s Of Copyright Objects
1. Objects of copyright are: 1) literary works; 2) dramatic, musical and dramatic works; 3) scenario; 4) works of choreography and pantomime; 5) musical works, with or without words; 6) audio-visual works; 7) works of painting, sculpture, graphics and other works of fine art; 8) works of applied art; 9) works of architecture, urban construction and landscape architecture; 10) photographic works and works, produced by processes analogous to photography; 11) maps, plans, design, illustrations and three-dimensional works relative to geography,
topography and other sciences; 12) computer programs; 13) other works.
2. Protection computer programs available for alls of software (including operating systems), which can be expressed in any language, in any form, including source text and object code.
3. The objects of copyright shall also include: 1) derivative works (translations, adaptations, annotations, reports, curriculum vitae,
reviews, dramatizations, musical arrangements and other transformations of works of science, literature and art);
2) collections (encyclopedias, anthologies, databases) and other composite works, representing by selection and (or) location of materials the result of creative work.
Derivative and composite works are protected by copyright, regardless of whether the objects of copyright are the works on which they are based, or they include.
Footnote. Article 972 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 973. The Legal Regulation Of Copyright Relations
Copyright relations are regulated by this Code and other legislative acts on copyright and neighboring rights, and in the cases provided by them by other legislative acts.
Article 974. Works, That Are Not Objects Of Copyright
Works, that are not subjects of copyright: 1) official documents (laws, court decisions, other texts of legislative, administrative,
judicial or diplomatic nature), and their official translations; 2) state symbols and signs (flags, emblems, orders, banknotes, and other State symbols
and signs); 3) works of folk art; 4) reports on events and facts, that have informational character are not the objects of
copyright.
Article 975. Rights To Drafts Of Official Documents State Symbols And Signs
1. Copyright for drafts of official documents, state symbols and signs belongs to the person, who created the project (the developer).
Project developers of official documents, symbols and signs are entitled to publish such projects, if it is not prohibited by the body, on behalf of which carried out the development. When publishing the project, developers may give their name.
2. The project can be used by the competent authority for the preparation of an official document without the consent of the developer, if the project has been published by the author or sent by him (her) to the appropriate authority.
In the preparation of official documents, state symbols or signs on the basis of a project, it can be made additions and changes at the discretion of the authority, conducting the preparation of an official document, the state symbol or sign.
3. After the adoption of the draft by the competent authority, it can be used without the name of the developer, and without payment of royalties.
Footnote. Article 975 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 976. Copyright Symbol
1. Owner of the exclusive copyright may for claiming his (her) rights use the copyright sign, which is placed on each copy of the work, and consists of three elements:
1) the letter "C" in a circle; 2) the name of the holder of the exclusive rights; 3) the year of first publication of the work. 2. Unless proved otherwise, the holder of the exclusive copyright shall be the person, who
designated in the sign of protection.
Article 977. Personal Non-Property Rights Of The Author
1. The author of the work has the following non-property rights: 1) the right to be recognized as the author of the work and to require such recognition in
use, eliminating attribution of others to the same work (copyright); 2) the right to use the work under his (her) own name, under a pseudonym or
anonymously (right of author's name); 3) the right to make changes or additions to his (her) work and to protection of the work,
including its name, from making by anyone without the consent of the author the changes and additions in the publication, public performance or other use of the work (the right to inviolability of the work).
Providing the author’s work in the publication with the illustrations, forewords, afterword, comments or any explanations, without the author’s consent is prohibited.
After his (her) death, protecting the inviolability of the work is carried out by the person, who named in the will, and in the absence of such instructions by heirs of the author, and the persons, who in accordance with the laws obligated to the protection of copyrights;
4) the right to access to the work to the general public (right of disclosure), except for works, created in the performance of official duties or duty assignment of the employer.
2. The author has the right to reject an earlier decision to disclose the work (right of withdrawal), in condition to compensate to the user damages, caused by such decision,
including lost profits. If the work has already been disclosed, the author is required to give public notice about his (her) revocation. However, he (she) is entitled to withdraw from circulation earlier produced copies of the work at his (her) own expense.
This paragraph shall not apply to service work. 3. Author’s agreement with any person or his (her) refusal to exercise the moral rights are
invalid. Footnote. Article 977 as amended by the Law of the Republic of Kazakhstan dated
12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 978. Property Rights Of The Author
1. The author shall have the exclusive right to use the work in any form or by any means. 2. When using the work, the author has the right to authorize or prohibit any third party to
perform the following steps: 1) to copy the work (copyright); 2) broadcast the original or copies of the work by any means: sell, modify, rent (lease),
perform other operations, including open information and communication network (right of broadcast);
3) display the work in public (right of public display); 4) perform the work in public (right of public performance); 5) the public communication of the work for general public, including on air or on cable (
right of public communication); 6) to transfer the work to air (broadcast on radio and television), including broadcast via
cable or satellite (right of communication to the air); 7) translation of the work (the right of translation); 8) adaptation, arrangement or other process of the work (right of adaptation); 9) practically implement urban planning, architecture, design project; 10) exercise other actions, which are not contradict legislation. 3. Playback is repeated attachment to the work an objective form, which it had in the
original (publication of the work, copying audio or video recordings, etc.). 4. If copies of a lawfully published work have been put into civil circulation by means of
sale, their subsequent distribution without the author's consent and without payment of remuneration, except for cases stipulated by legislative acts of the Republic of Kazakhstan is valid.
5. The product is used, regardless of whether it is sold for the purpose of generating income or its implementation was not designed for it.
6. The practical application of the provisions, that form the content of the work ( inventions, other technical, economic, organizational, etc. solutions), does not make use of the work in terms of copyright.
Footnote. Article 978 as amended by the Laws of the Republic of Kazakhstan dated 22.11.2005 No. 90 (the order of enforcement see Art. 2 of the Law), dated 12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 979. Deposition Of Works
1. The deposit of manuscripts of works, other works on a physical medium, including the engine, is recognized as using the product, if such deposit made ??in the open for everyone's access repository (depository) and allows to obtain by the contract with the depositary the copy of a work by any person.
2. Deposit of the work is made on the basis of the contract between the holder and depositary, which is set the conditions for its use. Such a contract and the contract with the user of depositary are public (Article 387 of this Code).
Article 980. Action Of The Copyright In The Territory Of The Republic Of Kazakhstan
1. Copyright to the work, which is for the first time published in the Republic of Kazakhstan or is not ??published, but the original of which is in its territory in an any objective form, acts in the territory of the Republic of Kazakhstan. In this case, the copyright is recognized to the author and (or) his (her) heirs, as well as other legal successors of the author, regardless of their nationality.
2. Copyright is also recognized for the citizens of the Republic of Kazakhstan, as well as their successors, even if the work of whom is published for the first time, or are in any objective form on the territory of a foreign state.
3. In providing protection of the copyright, to the holder in accordance with international contracts the fact of publication the work in the territory of a foreign state shall be determined under the provisions of the corresponding international contract.
4. In order to protect the work in the territory of the Republic of Kazakhstan, the author of the work is determined by the laws of the state, where the work was first protected.
Article 981. Copyright Start
Copyright to the work starts from the moment of giving the work an objective form, accessible to the perception of third parties, regardless of its publication. Copyright to the verbal work shall act from its notification to third parties.
If the work is not covered by Article 980 of this Code, the copyright in a work is protected from the first publication of the work, if it is carried out in the Republic of Kazakhstan.
Article 982. Duration Of Copyright
1. Copyright is valid for the life of the author and seventy years after his (her) death, as from the first of January of the year, following the year of death of the author.
2. Copyright in a work of joint authorship, is valid for the life of co-authors and seventy years after the death of the last of the authors, who is surviving co-author.
3. Copyright to the work, which is first published under a pseudonym or anonymously, is valid for seventy years from the first of January of the year following the year of publication of the work.
If within that time an anonymous or pseudonym shall be disclosed, is operating the time prescribed by paragraph 1 of this Article.
4. During the time, specified in paragraph 1 of this Article, the copyright belongs to the author's heirs and inherited, and belongs successor, who is entitled under the contract with the author, his (her) heirs and followed successors.
5. Copyright to the work, which is first published over thirty years after the author’s death , shall be valid for seventy years after its release to the public, as from the first of January of the year, following the year of publication of the work.
6. Authorship, the author's name and integrity of the work shall be protected termless. Footnote. Article 982 as amended by the Law of the Republic of Kazakhstan dated
November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 983. Transition Of The Work To The Public Domain
1. After expiration of the copyright to the work, it becomes public domain. 2. Works in the public domain may be freely used by any person, without payment of
royalties. The right of authorship, the right of author's name and the right to integrity of the work should be respected.
Footnote. Article 983 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 984. Management Of Copyright
1. The right holder may exercise his (her) rights individually, at his (her) own discretion. Other persons may manage copyright only with the consent of the right holder and the granted to him (her) powers, except the rights provided by Article 977 of this Code, when an authorized agent is the legal representative.
2. In order, established by the legislative acts, the owners of copyright and related rights can create organizations, that are entrusted with the operation of copyright and related rights.
Chapter 51. Neighboring (Related) Rights
Article 985. OBJECTS of RELATED RIGHTS
Neighboring rights apply to productions, performances, phonograms, programs of broadcasting and cable distribution, regardless of the purpose, contents and value, as well as the mode or form of its expression.
Article 986. Subjects Of Neighboring Rights
1. The subjects of neighboring rights are performers, phonogram producers and air and cable broadcasters.
2. Phonogram producers, air and cable broadcasters, exercise the rights, provided by this Chapter, within the rights under the contract with the artist and author of the recorded on the phonogram, or broadcast or by cable.
3. Performer shall exercise the rights, provided by this Chapter, in respect of rights of the authors of executable work.
4. The formation and execution of neighboring rights do not need to register works or to comply with any other formal requirements.
5. Producer of Phonograms and (or) the performer for announcement their rights are entitled to use a sign of protection of neighboring rights, that are placed on each copy of a fixed performance, phonogram, and (or) on each box containing it, and consists of three elements:
1) the letter "P" in a circle; 2) the name of the holder of the exclusive rights; 3) the year of first publication of record of performances and phonograms. 6. Unless proves otherwise, the phonogram producer shall be an individual or legal entity,
and its name is indicated on the soundtrack, and (or) the case containing it. Footnote. Article 986 as amended by the Law of the Republic of Kazakhstan dated
November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 987. Action Of Neighboring Rights
1. Right of the performer to the performance, which is the first time took place in the territory of the Republic of Kazakhstan, shall act in the territory of the Republic of Kazakhstan. In this case, the right is recognized for the performer and his (her) heirs, as well as other legal successors of the performer, regardless of nationality.
Right of the performer is also recognized for him (her) and his (her) successors in cases, where the performance was first performed in a foreign country.
2. Rights of producers of phonograms act in the territory of the Republic of Kazakhstan, if this record for was performed in public or copies distributed in public for the first time in the Republic of Kazakhstan.
Rights of producers of phonograms are also recognized for the citizens of the Republic of Kazakhstan or legal entities, which have their place of residence or place of stay in the territory of the Republic of Kazakhstan.
3. The rights of air or cable broadcaster are recognized for them in case, when the organization is officially located in the territory of the Republic of Kazakhstan and broadcasts from transmitters located in the territory the Republic of Kazakhstan.
4. Rights of other foreign performers, phonogram producers, air and cable broadcasters are protected in the Republic of Kazakhstan in accordance with the international treaties, ratified by the Republic of Kazakhstan.
Footnote. Article 987 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 988. Regulation Of Rights Of Subjects Of Neighboring Rights
The scope and content of exclusive rights and other rights of the performer, phonogram producer, air and cable broadcasters, as well as cases and to the extent of the exclusive rights restrictions, specified subjects and liability for violations are governed by legislative acts.
Footnote. Article 988 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 989. Term Of Neighboring Rights
1. Neighboring rights in respect of the performer shall act for seventy years after the first execution or performance. Performer's rights to the name and for protection of execution or performance from distortion shall be protected indefinitely.
2. Neighboring rights in respect of the phonogram producer shall act for seventy years after the first publication of the phonogram or over seventy years after its first recording, if the phonogram has not been published during this period.
3. Neighboring rights to the broadcasting organization shall act within seventy years after the first broadcast.
4. Neighboring rights to the cable casting organization shall act within seventy years after the first cable transmission.
5. Calculation of periods of time, provided by paragraphs 1-4 of this Article, begins from the first January of the year, following the year when was the legal fact, which is base for beginning of the period.
Footnote. Article 989 as amended by the Law of the Republic dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 990. Rights Of Performers, Phonogram Producers, Air And Cable Broadcasters, Who Are Foreign Nationals Or Foreign Legal Entities
The rights of performers, phonogram producers, air and cable broadcasters, who are foreign nationals or foreign entities, if they carry first production, performance, recording or broadcast outside of the Republic of Kazakhstan, shall act in its territory in accordance with international treaties, ratified by the Republic of Kazakhstan.
Footnote. Article 990 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Chapter 52. The Right to an Invention, Utility Model, Industrial Design
Article 991. Terms Of Legal Protection Of An Invention, Utility Model, Industrial Design
1. Rights to an invention are protected by an innovation patent or patent, and to an utility model and industrial design by patent.
2. An invention is given legal protection and recognized a technical solution, when it has an inventive step and industrial applications.
3. A utility model is granted legal protection and recognized as improving the means of production and consumer goods when it is new and industrially applicable.
4. As an industrial design, which is granted legal protection, is recognized art and design solution of the product that defines its appearance and is new and original.
5. Requirements for invention, utility model, industrial design, and in accordance with them the right to receive a patent and patent innovation, and the procedure of issuing it by authorized state body (hereinafter - the patent body (organization) is established by legislative act.
6. The list of non-patentable technical solutions, constructive performance of production means and consumer goods, art and design solutions of products is determined by legislative acts.
Footnote. Article 991 as amended by the Law of the Republic of Kazakhstan dated 02.03.2007 No. 237 (shall be enforced from the day of its official publication), dated 12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 992. The Right To Use The Invention, Models And Industrial Design
1. The patent holder has the exclusive right to use at his (her) discretion a r patent invention, utility model, industrial design, including the right to produce a product with the use of secure solutions, apply protected by innovation patent or patent technological processes in own manufacture, sell or offer for sale the products, containing secure solutions, and import the appropriate product.
2. Other persons are not entitled to use the invention, utility model, industrial design without the permission of the patent owner, except in cases, where such use in accordance with this Code or other legislation does not violate the rights of the patent holder.
3. Unauthorized manufacture, use, import, offer for sale, sale, other introduction into civil circulation or storage for this purpose the product, which is manufactured with the use of a patented invention, utility model or industrial design, and the use of a process, protected by the innovation patent or patent an invention, or the introduction into civil circulation or storage for this purpose the product, which is manufactured directly by a process, protected by an innovation patent or patent to invention are recognized as a violation of the exclusive rights of the patent holder.
The product is recognized as manufactured by a patented process, unless it is proved otherwise.
Footnote. Article 992 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication).
Article 993. Disposal Of Right To Patent And Innovate Patent
The right to obtain a patent and innovation patent, rights arising from the registration of the application, the right to ownership of patents and innovation patents, and rights arising from the patent and innovation patent may be transferred in whole or in part to another person .
Footnote. Article 993 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication.)
Article 994. The Right Of Authorship
1. Author of an invention, utility model or industrial design shall have the right of authorship and the right to assign the invention, utility model, industrial design a special name .
2. The right of authorship and other personal rights to inventions, utility models, industrial designs arise from the moment of rights, based on the title of protection.
3. To the author of the invention, utility model and industrial design, legislative acts may allocate special rights, privileges and benefits of a social nature.
4. The person, who is named in the application as the author, is considered the author, until it is proved otherwise. Only the facts and circumstances, existed before the law may be involved as evidence.
Footnote. Article 994 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication).
Article 995. Co-Authors Of The Invention, Utility Model, Industrial Design
1. Relationships of co-authors of the invention, utility model and industrial design are determined by agreement between them.
2. Uncreative promotion to the creation of an invention, utility model or industrial design (technical, organizational or other assistance, assistance to registration of rights, etc.) does not lead to co-authorship.
Article 996. Service Inventions, Utility Model, Industrial Design
The right to an innovation patent, invention patent, utility model, industrial design, created by an employee in the performance of his (her) duties or specific tasks of the employer (employee's invention), belongs to the employer, unless otherwise provided by the contract between them.
Footnote. Article 996 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication).
Article 997. Author’s Right To Compensation For Service Invention, Utility Model, Industrial Design
The amount, terms and manner of payment the compensation payable to the author for service invention, utility model, industrial design are determined by agreement between him ( her) and the employer. If the parties do not agree, the decision shall be taken by the court. If it is impossible to proportionate the author's and the employer’s contribution in creating invention, utility model or industrial design, the author recognizes the right to half of the benefit, which the employer received or should have received.
Article 998. Action Of Innovation Patent And Patent In The Territory Of The Republic Of Kazakhstan
1. The innovative patent, invention patent, patent to utility model and industrial design are valid in the territory of the Republic of Kazakhstan, which are issued by an authorized body.
2. Patents, which are issued in a foreign country or an international organization, are valid in the territory of the Republic of Kazakhstan, in the cases stipulated by international treaties of the Republic of Kazakhstan.
3. Foreign citizens and foreign legal entities or their heirs are entitled to get innovation patent, invention patent, and patent for utility model and industrial design in the Republic of Kazakhstan, if the solution applied for meets the requirements of the legislative acts of the Republic of Kazakhstan on inventions, utility models or industrial designs.
Footnote. Article 998 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication).
Article 999. Term Of Innovation Patent And Patent
1. Innovation patent and patent are valid from the date of filing an application to the patent authority (organization) and remain in force, subject to compliance with the requirements, established by the legislative acts:
1) innovative patent for an invention is in three years with a possible extension of the term by the patent authority (organization) at the request of the patent owner no more than two years;
2) a patent for invention is for twenty years; 3) utility model patent is for five years with a possible extension of the term by the patent
authority (organization) at the request of the patent owner no more than three years; 4) (Is excluded - dated March 2, 2007 No. 237) 5) industrial design patent is for fifteen years with a possible extension of the term by the
patent authority (organization) at the request of the patent owner no more than five years. 2. Protection of an invention, utility model, industrial design is valid from the date of
filing an application to the patent body (organization). Protection of the rights can be made after the issue of innovation patent or patent. In case of refusal to grant a patent or innovation patent, the protection shall not appear.
3. Priority of invention, utility model, industrial design is defined in the order established by the legislative acts.
Footnote. Article 999 as amended by the Laws of the Republic of Kazakhstan dated 02.03.2007 No. 237 (shall be enforced from the day of its official publication), dated 12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1000. Contract On The Transfer Of Patent Rights
Contracts on assignment of rights to innovation patents and patents, as well as the assignment of the innovation patent and patent, must be concluded ??in writing and registered in the patent body (the organization). Failure to comply with the written form or registration requirements invalidated the contract.
Footnote. Article 1000 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication.)
Article 1001. The License Agreement For Use The Invention, Utility Model, Industrial Design
1. License agreement and sub-license agreement to use the invention, utility model and industrial design are concluded in writing and must be registered in the patent body (the organization). Failure to comply with the written form or registration requirement is invalidated the contract.
2. The content of the license agreement must comply with the requirements, stipulated by Article 966 of this Code.
Article 1002. Open License
1. A patent owner may submit to the patent body (organization) an application for granting to any person the right to obtain a license to use the invention, utility model or industrial design (open license).
2. A person, wishing to use an open license, shall conclude an agreement with the patent holder on payments. Disputes on the terms of the contract shall be resolved in court.
An application of the patent owner to grant the right to an open license is irrevocable.
Article 1003. Liability For Violation Of Innovation Patent And Patent
At the request of patent holder infringement for innovation patent and patent must be stopped, and the infringer shall compensate the losses to the patent holder (Article 9 of this Code). Instead of incurred damages, the patent holder may recover from the offender income, which he (she) received as a result of improper use of the invention, utility model and industrial design.
Footnote. Article 1003 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication).
Article 1004. Right Of Prior Use
1. Any person, who before the priority date of the invention, utility model, industrial design faithfully used in the territory the Republic of Kazakhstan the identic decision, created independently from the author or made ??the necessary preparations, is entitled to use it free of charge without the extension of usage scale.
2. A person, who in good faith began to exploit the invention, utility model, industrial design after the priority date, but before the official publication of the grant of a patent or innovation patent for invention, utility model, industrial design, shall at the request of the patent owner stop further use. However, such a person is not required to compensate the patent owner incurred damages, as a result of such use.
Footnote. Article 1004 as amended by the Law of the Republic of Kazakhstan dated March 2, 2007 No. 237 (shall be enforced from the day of its official publication).
Article 1005. Restriction Of Rights Of The Patent Holder
The grounds for limiting the rights of the patent holder, the conditions for termination ( cancellation) the patent, its invalidation, termination, and compulsory licensing and expropriation of patent are established by legislative acts.
Chapter 53. Rights for selection achievements
Article 1006. Conditions For The Protection Of Rights To New Varieties Of Plants And New Breeds Of Animals
1. Rights to new plant varieties and new breeds of animals (breeding achievements) are protected under the condition of patent issue. Patent certifies the exclusive right of the patent owner to use the selection achievement, its priority, and the authorship of the breeder.
Plant cultivar, which is produced synthetically or by selecting and having one or more economic features that distinguish it from existing plant varieties is recognized as a selection achievement.
A breed is defined as the integrated numerous group of animals of common origin, created by man and has a genealogical structure and properties that allow to distinguish it from other kinds of animals of the same species. When these distinguishing features are quantitatively sufficient to allow for multiplication of the same breed, this is recognized as selection achievement in livestock.
2. Legal protection of selection achievements, policies and granting patents on plant varieties and animal breeds are established by legislative acts.
3. To the relations of the selection rights and protection of these rights shall be applied the rules of Articles 992-998, 1000-1004 of this Code, unless the rules of this Chapter, and legislation for the protection of selection achievements provides another.
Footnote. Article 1006 as amended by the Law of the Republic of Kazakhstan dated November 22, 2005 No. 90 (the order of enforcement see Art. 2 of the Law).
Article 1007. The Author’s Right To Name Of The Selection Achievement
1. The author of selection achievement is entitled to determine its name, which must meet the requirements established by law.
2. When production, reproduction, offering for sale, selling, and others of marketing of the protected breeding achievements, using of their registered names is obligatory.
Assignment for produced and (or) sold seeds, breeding material the names, which are different from the registered, is not allowed.
3. Assignment the names of registered selection achievements, to produced and (or) sold seeds, and breeding material, which are not related with them, violates the rights of the patent owner and breeder.
Article 1008. Rights Of The Author Of The Selection Achievement To Reward
1. The author of the selection achievement, who is not the patent holder, is entitled to receive royalties from the patent holder for the use of a selection achievement during the term of the patent.
2. The amount and terms of payment of remuneration to the author of the selection achievement is determined by the contract between him (her) and the patent owner. The amount of compensation shall not be less than five percent of the total annual income, received by patent holder for the use of the selection achievement, including the proceeds from the sale of license.
Remuneration shall be paid to the author within six months after the expiration of each year, in which a selection achievement used, unless the contract between author and the patent owner provides another.
Article 1009. Rights Of The Patent Holder To The Selection Achievement
Patent holder of the selection achievement shall have the exclusive right to use this achievement within the limits, established by the legislative acts on the Protection of Selection Achievements.
Article 1010. Duties Of Patent Holder
The patent holder of a selection achievement shall: 1) enter into circulation variety or breed, accepted for use in manufacture; 2) maintain appropriate plant variety or appropriate breed of animals for the term of the
patent, preserving the signs, specified in the official description of the variety or breed, established by expert body.
Article 1011. Term Of The Patent For A Selection Achievement
The effect of a patent for a selection achievement begins on the date of filing an application the patent body (organization) and lasts for twenty five years.
Legislative acts on selection achievements can be set longer term of a patent for certains of selection achievements, and the possibility of extending it by the patent body (organization ).
Article 1012. Permission To Use The Selection Achievements
1. Selection achievements, which provided legal protection (a patent), and its details are included in the State Register of breeding achievements, permitted to use in the production are allowed to use.
2. The inclusion of plant varieties and animal breeds in the State Register of breeding achievements, permitted for use in the production, is carried out by the State body on examination and testing of selection achievements by the results of the state tests for serviceability.
Chapter 54. Rights to Integrated Circuit Topographies
Article 1013. Conditions For The Protection Of Rights Of The Integrated Circuit Topographies
1. Legal protection, provided by this Chapter and other legislative acts shall apply only to the original integrated circuits.
As original topology of an integrated circuit, the result of creative activity of the author is recognized and inscribed on a tangible medium the spatial geometric layout of all the elements of the integrated circuit and the connections between them.
2. Legal protection provided by Articles of this chapter, shall not apply to ideas, methods, systems, technology, or coded information, which may be embodied in the topology.
3. To the relations of the right to integrated circuits and protection of these rights, respectively shall apply the rules of Articles 994-997 of this Code.
Article 1014. The Exclusive Right To Topology Of Integrated Circuit
1. The author or other holder of the topology of an integrated circuit has the exclusive right to use this topology at his (her) own discretion, in particular, by manufacturing an integrated circuit with the topology, including the right to prohibit the use of this topology to others without permission.
2. Exercising the rights that belong to several authors of topology or other right holders is determined by the contract between them.
3. Violation of the exclusive rights, is committing without permission the following: 1) the copy of the topology in whole or in part, by incorporating it to an integrated circuit
or otherwise, except for the part, which is not original; 2) the use, importation, offer for sale, sale or any other form of traffic of topology or an
integrated circuit with this topology. 4. Legislative acts set list of actions, which is not a violation of the exclusive rights of the
holder of topography rights.
Article 1015. Registration Of Topologies
1. The author of an integrated circuit or other right holder is entitled to register topology by applying for registration to the Authorized State body.
2. The application for registration can be performed within a period, which is not exceeding two years from the date of first use of the topography, if it took place.
3. Procedure for registration of topologies, and agreements on full or partial assignment of rights to them, are established by legislative acts.
Article 1016. The Term Of The Exclusive Right To Use The Topology
1. The exclusive right to use the topology is valid for ten years from the date of registration of the topology.
If registration of topology is not performed, specified ten years period counts from the date of first documented use the topology or an integrated circuit with this topology in any country of the world.
2. Appearance of identical original topology, created by another author shall not interrupt or terminate the period of exclusive rights, specified in paragraph 1 of this Article.
Chapter 55. The Right to Protection of Undisclosed Information from Illegal Use
Article 1017. Legal Protection Of Undisclosed Information
1. A person, who lawfully possesses technical, organizational or commercial information, including trade secrets (know-how), which is unknown to a third party (undisclosed information), is entitled to the protection of this information from illegal use, if the conditions established in paragraph 1 of Article 126 of this Code are kept.
2. The right to protection of undisclosed information from illegal use occurs independently of execution any formality in respect of that information (its registration, certificates, etc.).
3. Rules on the protection of undisclosed information shall not apply to information that, in accordance with the laws may not be proprietary or trade secret (information about legal entities, the rights to property and transactions with it, the information, submitted in the form of statistical and other).
4. The right to protection of undisclosed information lasts until the conditions specified in paragraph 1 of Article 126 of this Code are kept.
Footnote. Article 1017 as amended by the Law of the Republic of Kazakhstan dated 19.03.2010 No. 258-IV.
Article 1018. Liability For Unlawful Use Of The Undisclosed Information
1. A person, who without legal justification receives or distributes undisclosed information or uses it, shall compensate the person, who lawfully possesses this information, for the damages caused by its illegal use.
2. If a person, who illegally uses undisclosed information, received from a person, who has no right to distribute it, and the purchaser of information did not know or should have known it (bona fide purchaser), the lawful owner of undisclosed information is entitled to require him (her) the damages, caused by the use of undisclosed information, after an innocent purchaser learned that his (her) use is illegal.
3. A person, who lawfully possesses undisclosed information, is entitled to require the person, who is using it illegally, the immediate cessation of its use. However, the court, taking into account the resources, used by an innocent purchaser of undisclosed information on its use, may permit its further use under a reimbursable exclusive license.
4. A person, who independently and lawfully received information, which is comprising a content of undisclosed information, is entitled to use this information, regardless of the holder ’s rights on relevant undisclosed information, and shall not be responsible to him (her) for such use.
Article 1019. Transfer Of The Right To Protection Of Undisclosed Information From Illegal Use
1. A person, who possesses undisclosed information may transfer all or part of the information, constituting the content of the information to another person under a license agreement (Article 966 of this Code).
2. The licensee shall take appropriate measures to protect the confidentiality of the information, received under the contract and shall have the same right to protect it from illegal use of third parties, as the licensor. If the contract is not provided another, the obligation to maintain the confidentiality of information bears to the licensee after the termination of the license agreement, if the relevant information remains undisclosed.
Chapter 56. Means of Individualization for Participants of Civil Circulation, Goods and Services Paragraph 1. Trade name
Article 1020. The Right To A Company Name
1. A legal entity shall have the exclusive right to use the trade name (Article 38 of this Code) in the official forms, publications, advertising, signs, brochures, invoices, on websites, on goods and their packaging, and in other cases, necessary for the individualization of a legal entity.
2. The trade name of a legal entity shall be determined by the approval of its statutes. Under a certain brand name the entity shall be included in the State Register of Legal Entities.
3. The use of the company name, similar to the company name, which is already registered as a legal entity, can lead to the identification of the relevant entities, and misleading about its proprietary products or services, so cannot be used.
4. If the name of a legal entity is identical or confusingly similar to a trademark (service mark) any other legal entity or a individual, who is engaged in business activity, and as a result of the identity or similarity can mislead consumers, the priority shall have a means of individualization (trade name, trademark, service mark), which exclusive right arose previously. The owner of such a means of identification, in accordance with the laws of the Republic of Kazakhstan, is entitled to claim for annulment of legal protection of a trademark ( service mark) for similar goods or services, or ban on the use of a trade name.
Footnote. Article 1020 as amended by the Law of the Republic of Kazakhstan dated 12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1021. Use The Company Name Of A Legal Entity In The Trademark
Company name of a legal entity may be used in its own trademark.
Article 1022. Force Of Law To The Company Name
1. In the territory of the Republic of Kazakhstan is the exclusive right to the trade name, registered in the Republic of Kazakhstan as the designation of a legal entity.
To the trade name, registered or generally accepted in a foreign country, shall be the exclusive right in the territory of the Republic of Kazakhstan in the cases stipulated by legislative acts.
2. The eligibility of a company name is terminated with the liquidation of the legal entity and change of its corporate name.
Article 1023. Alienation Of The Right To The Company Name
1. Alienation and transfer of the rights to the trade name of the legal entity are not allowed , except for the reorganization of the legal entity and the exclusion of the whole enterprise.
2. The owner of the rights to a company name can be permitted (to license) to another person to use his (her) name by means, stipulated in the contract. The license contract shall include measures, which exclude the false suggestions of the consumers.
Paragraph 2. Trademark
Article 1024. Conditions For Legal Protection Of Trademark
1. The legal protection of a trademark is provided on the basis of its registration or without registration under the international treaties, where participating the Republic of Kazakhstan.
As a trademark (service mark) is recognized a registered or protected without registration by an international treaty, verbal, visual, volumetric, or other designation, serving to distinguish the goods or services of one person from the goods and services of others.
If a trademark (service mark) of a legal entity or an individual, who are engaged in business activity, is identical or confusingly similar to a company name of another entity, and as a result of the identity or similarity can mislead consumers, the provisions specified in paragraph 4 of Article 1020 of this Code shall be applied.
2. The legend, which registration as a trademark is not permitted, and the procedure for registration of trademarks, their termination and invalidation, as well as cases in which may be allowed the legal protection of unregistered trademarks, are defined by legislative acts on trademarks.
3. The trademarks right is certified by a certificate. Footnote. Article 1024 as amended by the Law of the Republic of Kazakhstan dated
12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1025. The Right To Use The Trademark
1. The holder of a trademark has the exclusive right to use and dispose his (her) sign. 2. The usage of a trademark is defined as its introduction into circulation, through means
such as: the production, use, import, store, offer for sale, sale of trademark or goods designated by the mark, and the use in signs, advertising, printed materials or other business documents.
3. Features of advertising trademarks and goods, marked by trademarks, are determined by the laws of the Republic of Kazakhstan.
Footnote. Article 1025 as supplemented by the Law of the Republic of Kazakhstan dated June 19, 2007 No. 264 (the order of enforcement see Art. 2 of the Law).
Article 1026. Legal Protection Of Trademarks In The Republic Of Kazakhstan
In the territory of the Republic of Kazakhstan legal protection is given to a trademark, registered by a patent authority (organization) of the Republic of Kazakhstan or international organization by virtue of an international treaty, ratified by the Republic of Kazakhstan.
Article 1027. Validity Of Trademark Rights
1. Priority of a trademark shall be established by the date of receipt an application the patent body (organization), if legislation on trademarks provides otherwise.
2. The right to a trademark is valid for ten years from the date of registration the application.
At the request of the holder of trademark rights, filed to the patent body (organization) in the last year of the validity of trademark, may be registered the extension of the trademark in a decade. Renewals can be done any number of times.
Article 1028. Consequences Of Non-Use Of The Trademark
When non-using of a trademark without a good reason, continuously for three years, its registration may be canceled at the request of any interested person.
Conclusion of a license contract to use the trademark is considered as using it. Footnote. Article 1028 as amended by the Law of the Republic of Kazakhstan dated
12.01.2012 No. 537-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1029. Transfer Of Right To The Trademark
1. The right to the trademark, in respect of alles of goods and services, or their parts, which are designated in the certificate, can be transferred to another person by the right holder and under the contract.
2. The transfer of the trademark shall not be allowed, if it can be the cause of confusion about the product or its manufacturer.
3. Transfer of right to the trademark, including its transfer by contract or by way of succession, must be registered in the patent body (organization).
Article 1030. PERMISSION to USE the TRADEMARK
1. The right to use a trademark may be granted by the owner of the rights to another person under the license agreement, with alles of goods and services or their parts, designated in the certificate (Article 966 of this Code).
2. License agreement, that permits the licensee to use the trademark, shall contain a condition, that the quality of goods or services of the licensee will not lower the quality of goods or services of the licensor, and the licensor has the right to monitor the implementation of this provision.
3. Upon termination of the trademark rights the action of the license agreement shall be terminated.
4. Transfer of right to the trademark to another person shall not terminate the license agreement.
Article 1031. Form And Registration Of Contracts On Transfer Of The Trademark And License Agreements
An agreement on the transfer of rights to a trademark or license agreement must be concluded in writing and registered in the patent body (organization).
Failure to comply with the written form and the registration requirements invalidates the contract.
Article 1032. Responsibility For The Violation Of The Right To Trademark
A person, who unlawfully uses a trademark or designation similar to it to the confusion of others, must cease violation and compensate the owner of the trademark for the incurred losses (Article 9 of this Code).
A person, who unlawfully uses the trademark, shall destroy the manufactured image of the trademark, remove the product or its packaging illegally using a trademark or designation which deliberately causes confusion.
If it is impossible to meet the requirements established by part 2 of this Article, the corresponding goods must be destroyed.
Paragraph 3. Name of Goods Origin
Article 1033. Conditions Of Legal Protection The Name Of The Goods Origin
1. Legal protection the name of the goods origin is provided on the basis of registration, except the cases, provided by legislative acts.
The name of the goods origin (indication of origin) shall be the name of the country, community, locality or other geographic area, using to designate a product, which special properties are exclusively or mainly determined by this geographical natural conditions or other factors or by combination of natural conditions and these factors.
Goods origin may be a historical name of a geographic object. 2. The name of the geographical area, but generally used in the Republic of Kazakhstan to
designate a particular of goods, which is not associated with place of manufacture, is not recognized as a goods origin and cannot be registered for the legal protection in accordance with the rules of this section. This, however, shall not deprive a person, whose rights are violated by unfair use of such a name, the ability to protect them by other means provided by legislative acts, including the regulations on unfair competition.
3. Registration of a goods origin shall be by the patent body (organization). On the basis of the registration is given the certificate on the right to use a goods origin.
The procedure and conditions for registration and certification, invalidation and cancellation of registration and certificates, are defined by legislation on trademarks, service marks and appellations of origin.
Article 1034. The Right To Use The Goods Origin
1. A person, who has the right to use the goods origin, is entitled to place the name on the product, packaging, advertising, brochures invoices and use it otherwise in connection with the introduction of the product into civil circulation.
2. Goods origin can be registered by several persons jointly or separately, to designate a product that meets the requirements specified in paragraph 1 of Article 1033 of this Code. The right to use the goods origin belongs to each of these individuals.
3. A person, who in good faith uses a geographical indication, which is identical or similar to a registered goods origin, at least six months prior to the date of first registration, shall retain the right to its use, within the period established by the patent body (organization), but no less than seven years from the date of such registration
4. Alienation, other transactions of the assignment the right to use the goods origin and providing to use them by the license, is not allowed.
Article 1035. The Scope Of The Legal Protection Of The Goods Origin
1. Kazakhstan provides the legal protection for appellations of origin, which is in the territory of the country.
2. Legal protection of the goods origin, which is in another state, shall be used in the Republic of Kazakhstan, if the name is registered in the country of origin, and in the Republic of Kazakhstan in accordance with this Code.
Article 1036. Validity Period Of The Certificate For The Right To Use The Goods Origin
The certificate for the right to use the goods origin is valid for ten years from the date of the application to the patent authority (organization).
The period of validity may be extended at the request of its owner, filed during the last year of the certificate, for ten years in the conditions, granting the right to use the name. Renewals may be done non-limited times.
Article 1037. Liability For Illegal Use Of The Goods Origin
1. A person, who entitled to use the goods origin, as well as the organizations for consumer protection may require the person, who illegally uses this name to stop using it, remove from the product, its packaging, forms and other documents the unlawfully used
name or designation, similar to it to confusion, and destruction of images of the name or designation, similar to it to confusion, and if it is impossible to seizure and destruct the goods and (or) package.
2. Person, having the right to use the goods origin, may require an offender of the right compensation of losses (Article 9 of this Code).
Section 6. Inheritance Rights Chapter 57. General Provisions Concerning Inheritance
Article 1038. Inheritance
1. Inheritance is a transfer of property of a deceased citizen (testator) to another person ( persons) who is a heir (are the heirs).
2. Property of a deceased citizen shall be transferred to other persons on the terms of universal legal succession. Legacy shall be transferred as one entity and at the same moment, unless it otherwise ensues from this Section.
3. Inheritance shall be regulated by this Code, and in the cases expressly established by this Code, it shall be regulated by other legislative acts.
Article 1039. Grounds For Inheritance
1. Inheritance shall be carried out on the grounds of the will and (or) law. 2. Inheritance by law shall take place where there is no will, or where the will defines the
destiny of a part of legacy, as well as in other cases established by this Code.
Article 1040. Composition Of A Legacy
1. The composition of a legacy shall comprise property belonging to the testator as well as rights and obligations the existence of which is not terminated by his (her) death.
2. The rights and obligations that are inseparably associated with the personality of the testator shall not be included into the composition of a legacy:
1) rights of membership in organizations that are legal entities, unless it is otherwise established by legislative acts or an agreement;
2) the right to compensation of damage to life or health; 3) rights and obligations ensuing from alimony obligations;
4) rights to pensions, benefits and other payments on the basis of legislative acts concerning labor and social support;
5) personal non-property rights, which are not associated with property, rights, except for the cases established by the legislative acts.
3. Personal non-property rights and other non-material amenities, which belonged to the testator, may be exercised and protected by heirs.
Footnote. Article 1040 as amended by the Laws of the Republic of Kazakhstan dated 15.05.2007 No. 253, dated 28.12.2011 No. 524-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1041. Inheritance Of Property Which Is Joint Common Property
1. The death of a participant in common joint property shall be the basis for determining his (her) share in such property and division of common property or appropriation out of it of the share of a deceased participant in accordance with the procedure established by Article 218 of this Code. In that case inheritance shall be opened with regard to the share of the deceased participant in common property and if it is impossible to divide property in kind with regard to the value of such a share.
2. A participant of common joint property shall have the right to bequeath his (her) share in common property, which will be determined after his death, in accordance with paragraph 1 of this Article.
Article 1042. Opening The Inheritance
1. Inheritance shall be opened on the score of the death of a citizen or his (her) announcement as deceased.
2. The day of death of a testator, and in the case of announcing him as deceased the date when the court decision on announcing a citizen as deceased, unless there is a different date in the court decision, shall be the day of inheritance opening.
3. If persons who had the right to inherit one after another died on one day, they shall be recognized as deceased simultaneously, and inheritance shall be opened after each of them and heirs of each of them shall be called for inheritance.
Article 1043. Place Of Inheritance Opening
The last place of residence of a testator shall be the place where inheritance opens, and if it is unknown then the place where estate or its principal part is located.
Article 1044. Heirs
1. Citizens being alive at the moment when inheritance opens, as well as those conceived when the estate-leaver is alive and those born alive after the inheritance opens, may be heirs by law and will.
2. Legal entities formed prior to the opening of inheritance and which existed at the time when inheritance opens, as well as the state may be heirs by will.
Article 1045. Dismissal Of Improper Heirs From Inheritance
1. Persons who deliberately deprived testator or potential heirs of life, or made an attempt to take the testator’s life shall have no right to inherit neither by law nor by will. Persons, for whom a testator left a will after an attempt to take his (her) life, shall be an exception.
2. Persons who deliberately impeded the exercise of the last will of a testator and who assisted calling themselves or persons who are close to them to inherit or increase the share of inheritance which belongs to them, also shall have no right to inherit neither by will, nor by law.
3. Parents who were deprived of parental rights and whose rights were not re-established by the moment of opening inheritance shall not have the right to inherit after their children, nor parents (adopters) and full age children (step-children) who evaded execution of duties entrusted to them by virtue of law with regard to taking care of a testator.
4. The circumstances that serve as a basis for dismissal from inheritance of improper heirs shall be established by the court.
4-1. A person who does not have the right to inherit or who is eliminated from inheritance under the present article (improper heir), shall be obliged to return all the property he groundlessly received from among the inheritance.
When return of inheritance property is impossible, heir shall be obliged to compensate it at its trade price.
5. The rules of this Article shall also apply to testamentary gifts (Article 1057 of this Code ).
If the subject of the testamentary refusal was implementation of the certain work for legatee or rendering him (her) the certain service, the later shall be obliged to compensate to the heir implemented the testamentary refusal, the cost of the implemented work.
6. The rules of this Article shall apply to all heirs, including those who have the right to an obligatory share.
Footnote. Article 1045 as amended by Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Chapter 58. Inheritance by Will
Article 1046. General Provisions
1. A will of a citizen with regard to distribution of property he (she) has in the case of his (her) death shall be recognized as a will.
1-1. The will shall be created by a citizen who had his (her) full dispositive capacity as of the time when it was created.
2. A citizen may bequeath all his (her) property or part of it to one or several persons who are or are not heirs by law, as well as to legal entities and the state.
3. A will must be executed personally. Execution of a will through a representative shall not be allowed.
4. A testator shall have the right to deprive of inheritance one, several, or all heirs by law. Deprivation of an heir by law of inheritance shall not apply to his descendants who inherit by the right of presentation, unless it otherwise ensues from the will.
5. A testator shall have the right to execute a will containing instructions on any property. A testator shall be entitled to set heirs' shares in the estate in any way, to dispose of his (
her) property or any of its part, by making one or several wills, concerning different properties.
6. A testator shall be free to renounce and amend the drawn up will at any moment after executing it, and he shall not be obliged to indicate reasons for the renunciation or amendment.
7. A testator shall not have the right to entrust to the persons who are in his will appointed by him as heirs, the duty to distribute the properties bequeathed by him in a certain manner in the case of their death.
Footnote. Article 1046 as amended by Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1047. Conditional Will
1. A testator shall have the right to condition the receipt of inheritance to a certain condition with regard to heir's behavior.
2. Illegal conditions included among instructions concerning appointment of heirs or deprivation of the right to inherit shall be invalid.
3. Conditions which are included into a will and which are unfeasible for heirs because of their status of health or by virtue of other objective reasons, may be recognized as invalid pursuant to the action of an heir.
Article 1048. Sub-Appointment Of Heirs
1. A testator may provide for the case where an heir indicated in the will dies prior to opening of inheritance, or does not accept it or refuses it, or is removed from inheritance as an improper heir in accordance with the procedure of Article 1045 of this Code, and also provide for the case of an heir's failure to comply with legitimate conditions of the testator by will, appoint another heir (sub-appointment of an heir).
2. Any person, who in accordance with Article 1044 of this Code may be an heir, may be a sub-appointed heir.
3. A repudiation of an heir by the will for benefit other than that of the sub-appointed heir shall not be allowed.
Article 1049. Inheritance Of A Part Of Property Which Is Left Not Bequeathed
1. A part of property that is left not bequeathed shall be distributed among heirs by law called to inheritance in accordance with the procedure of Articles 1061-1066 of this Code.
2. The circle of those heirs shall also comprise those heirs by law to whom the other part of property was left by will.
Footnote. Article 1049 as amended by Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1050. General Rules Concerning The Form Of A Will
1. A will must be executed in writing and notarized with an indication of the place and time of its execution.
2. The following shall be recognized as wills drawn up properly: 1) notarized wills; 2) wills equated to those notarized. 3. A will must be signed with a testator's own hand. When a testator by virtue of physical drawbacks, disease or illiteracy cannot sign a will
with his own hand, it pursuant to his request may be signed in the presence of a notary or any other person to attest the will, by other citizen with an indication of the reasons because of which the testator might not sign his will with his own hand.
4. In the cases where in accordance with the rules of this Code witnesses must be present during compilation, drawing up, signing or attesting a will, the following may not be such witnesses, nor may they sign a will instead of a testator:
1) the notary or any other person who attests a will; 2) the person for whose benefit a will is drawn up or a testamentary gift was made, a
spouse of such a person, his children, parents, grandchildren, great-grandchildren or heirs of testator by law;
3) citizens who have limited capability; 4) illiterate and other persons who cannot read a will; 5) persons who have been sentenced for perjury.
Article 1051. A Notarized Will
1. A notarized will must be written by a testator or written down by a notary from the words of the testator in the presence of a witness. When a will is written down from the words
of a testator by a notary, usual technical devices may be used (awriter, personal computer etc. ).
2. A will written by a notary from the words of a testator must be fully read by the testator in the presence of the notary and a witness before the will is signed.
When a testator due to physical problems, disease or illiteracy is not capable to read a will personally, its text shall be voiced for him by a witness in the presence of a notary and a note to that effect shall be made in the will with an indication of the reasons why the testator was not able to read his will personally.
3. When a notarized will is drawn up in the presence of a witness, the surname, name and place of the witness' permanent residence must be indicated in a will. The same details must be included in a will with regard to a person who signed the will instead of a testator.
4. At a testator's discretion, a will shall be notarized without a notary's perusal of its contents (a secret will).
A secret will, under the fear of its invalidity must be written with a testator's own hand and it must be signed by the testator in the presence of two witnesses and a notary, sealed in an envelope on which the witnesses shall affix their signatures. An envelope signed by witnesses shall be sealed in the presence of the witnesses and notary into another envelope, onto which the notary shall affix his notarization note.
5. Wills of persons residing in populated areas where there is no notary shall be attested by official person authorized by legislative acts to perform notarial actions.
Article 1052. Wills Equal To Notarized Wills
1. The following shall be equal to notarized wills: 1) wills of citizens who are treated in hospitals, sanatoria and other medical and
prevention institutions as well as of those who reside in homes for the elderly and disabled, attested by chief physicians, physicians on duty of those hospitals sanatoria and other medical and prevention institutions, as well as by directors, chief physicians of homes for the elderly and disabled;
2) wills of servicemen and other persons being given treatment in hospitals, sanatoria and other military and medical institutions attested by ?hiefs, their deputies for medical matters, head physicians and physicians on duty of those hospitals, sanatorium and other military and medical institutions;
3) wills of citizens who are on sailing sea ships or other ships of internal navigation, which are under the flag of the Republic of Kazakhstan, attested by captains of those ships.
4) wills of citizens who are on exploration and other expeditions, attested by the heads of those expeditions;
5) wills of military servicemen, and in places of dislocation of military units, formations, establishments, military and educational institutions where there are no notaries and official
persons authorized to perform notarial actions, as well as wills of civic personnel working for those units, their family members and family members of military servicemen, as attested by the commanders (heads) of those military units, formations, institutions and establishments;
6) wills of persons who are in places of deprivation of freedom, as attested by the heads of places of deprivation of freedom.
2. Wills provided for in paragraph 1 of this Article must be signed by a testator in the presence of a witness who shall also sign a will.
Official persons enumerated in paragraph 1 of this Article shall be obliged to hand over one copy of an attested will to a notary for keeping in accordance with legislation concerning notary's office.
In other respects, such wills shall be subject to the rules of Article 1051 of this Code, except for the will notarization requirement.
Article 1053. Renunciation And Amendment Of A Will
1. A testator shall have the right to renounce or amend a will he made at any time. 2. A will may be renounced by way of: 1) submission of an application to a notary's office for renunciation of a will in full which
was made by him earlier; 2) drawing up a new will. 3. A will may be amended by way of: 1) submission of an application to a notary's office for amending a will in certain part
which was made by him earlier; 2) drawing up a new will that alters a will partially which was made earlier. 4. An earlier will which was renounced fully or partially by a subsequent will shall not be
restored if the latter is renounced or amended by a testator in its turn.
Article 1054. Secrecy Of A Will
A notary, any other person who attests a will, witnesses as well as a citizen who signs a will instead of a testator, shall not have the right to disclose information concerning contents of a will, its execution, renunciation or amendment prior to the opening of inheritance.
Article 1055. Interpretation Of A Will
When a will is interpreted by a notary, executor of a will or the court, the literal meaning of words and expressions contained therein shall be taken into consideration. Where the verbal meaning of some provision of a will is unclear, it shall be established by way of comparing that provision with other provisions and the essence of the will as a whole.
Article 1056. Invalidity Of A Will
1. A will executed in an improper form shall be invalid. Invalidity of a will shall be recognized also in accordance with the rules of Chapter 4 of this Code concerning invalidity of transactions.
2. A will may be recognized as invalid pursuant to an action of a person for whom the recognition of a will as invalid has material consequences, due to violation of the procedure established by this Code for compilation, signing and attesting wills.
Clerical errors and other minor infractions of technological character, made during drawing up, signing or identification the will, shall not be the basis for its invalidity, if the court finds that they do not influence on understanding of expression of testator’s will.
3. Invalidity of certain instructions contained in a will shall not invalidate the rest of a given will.
4. In the event of recognizing a will as invalid, an heir who in accordance with that will was deprived of inheritance, shall acquire the right to inherit by law in accordance with the procedure established by Article 1060 of this Code.
Footnote. Article 1056 as amended by Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1057. Testamentary Gift (A Legatum)
1. A testator shall have the right to entrust to a heir by will the execution at the expense of inheritance of any obligation (testamentary gift) for the benefit of one or several persons ( recipients of gifts), who shall acquire the right to claim execution of a testamentary gift.
Persons who are or are not heirs by law may be recipients of gifts (legatees). 2. Transfer into ownership of a recipient of a gift, for use or in accordance with any other
corporeal right of an article which is a part of inheritance, acquisition and transfer to him (her ) of property which is not a part of inheritance, performance for him of certain work, rendering of a certain service etc. may be subject to a testamentary gift.
3. An heir to whom his (her) testator entrusted a testamentary gift must execute it only within the limits of actual value of the inheritance he received and less a part of debts of the testator, which is apportioned to him (her).
When an heir to whom a testamentary gift is entrusted has the right to an obligatory share in inheritance, his duty to execute the gift shall be restricted by the value of inheritance he received in excess of his obligatory share.
When a testamentary gift is entrusted to all or several heirs, it shall encumber each of them in proportion to their shares in inheritance, unless a will stipulates otherwise.
4. A testator shall have the right to entrust an obligation to an heir who inherits a dwelling house or dwelling premises to grant life tenure of dwelling house or its certain part to another
person. In the case of a transfer of the right of ownership with regard to a given dwelling, the right of life tenure shall remain in force.
The right to life tenure shall be unalienable, non-transferable and it shall not be acquired by heirs of a legatum recipient.
The right to life tenure granted to a legatum recipient shall not be a basis for residence of his family members, unless it is otherwise indicated in a will.
5. In the case of the death of an heir to whom a testamentary gift was entrusted, or in the case of his failure to receive inheritance, the execution of a testamentary gift shall be transferred to other heirs who have received his share, or to the state, if property became ownerless.
A testamentary gift shall not be executed in the case of a legatum recipient death prior to the opening of inheritance or after the opening, but prior to that moment when an heir by will was in time to accept it.
6. A legatum recipient shall not be liable for debts of a testator.
Article 1058. Delegation
1. A testator may delegate to an heir by will a duty to perform an act or abstain therefrom without granting to anyone the right to claim the execution of that duty as a creditor. For attaining a generally useful purpose the same duty may be delegated to a will executor when a part of property is appropriated by the testator for the execution of an assignment.
2. The rules of Article 1074 of this Code shall accordingly apply to delegation that is associated with deeds having a property nature.
3. The duty to execute an assignment shall terminate in the case where due to the circumstances provided for by this Code, a share in inheritance which is owing to or which belongs to the heir with whom the duty rested to execute an assignment, is transferred to other heirs.
Footnote. Article 1058 as amended by Law of the Republic of Kazakhstan dated 27.04.2012 No. 15-V (shall be enforced upon expiry of ten calendar days after its official publication).
Article 1059. Execution Of A Will
1. A testator may entrust the execution of his (her) will to the person indicated by him ( her) in his (her) will, who is not an heir (executor of a will, administrator). The consent of that person to be executor of a will must be expressed by him (her) either in his own hand's note on the will itself, or in an application attached to the will.
When in a will its executor is not indicated, the heirs by agreement between themselves shall have the right to delegate the execution of the will to one of the heirs or to another
persons. In the case of a failure to reach such an agreement, the executor of a will may be appointed by the court pursuant to claims of one or several heirs.
An executor of a will shall have the right to refuse the execution of duties delegated to him (her) by a testator, by prior notice to the heirs by will. The discharge of the executor of the will from his (her) duties shall also be possible pursuant to a court decision based on an application of the heirs.
2. An executor of a will shall: 1) carry out protection of an inheritance and its management; 2) take every step available to notify all the heirs and gift recipients of the opening of the
inheritance for their benefit; 3) receive amounts owing to the testator;
4) transfer to the heirs properties which are owing to them in accordance with the testator's will and legislative acts;
5) ensure the compliance by heirs with testamentary gifts entrusted to them (Article 1057 of this Code);
6) execute testamentary delegations or require from heirs by will of the execution of testamentary delegation (Article 1058 of this Code);
7) carry out the liquidation of liabilities associated with the inheritance. 3. An executor of a will shall have the right to participate in court cases and other cases
associated with the management of an inheritance and execution of the will in his own name, or he may be engaged to take part in such cases.
4. An executor of a will shall perform his functions within a reasonable period sufficient for liquidation of inheritance liabilities, collection of amounts which are owing to the testator and acquisition by all heirs of ownership with regard to an inheritance.
5. An executor of a will shall have the right to compensation at the expense of an inheritance of appropriate expenditures associated with the management of the inheritance and execution of the will. In the will there may be stipulated a payment of remuneration to the executor of the will at the expense of the inheritance.
6. Upon execution of a will an executor of the will shall be obliged to submit to the heirs a report pursuant to their demand.
Chapter 59. Inheritance by Law
Article 1060. General Provisions
1. Heirs by law shall be called to inherit in accordance with the procedure for a queue as provided for by Articles 1061 - 1066 of this Code.
2. When inheriting by law, an adopted person and his descendants on the one side and the adopter and his relatives on the other side are equated to blood relatives.
Adopted persons and their descendants shall not inherit by law after the death of blood parents of the adopted person or his other blood relatives.
Parents of an adopted person and his other blood relatives shall not inherit by law after the death of an adopted person and his descendants.
3. Each subsequent queue of heirs by law shall receive the right to inherit in the case there are no heirs of the previous queue, their removal from inheritance, their non-acceptance of inheritance or refusal from it, except for the cases indicated in paragraph 5 of Article 1074 of this Code.
4. The rules of this Code concerning the queues for calling heirs by law to inherit and concerning size of their shares in inheritance may be changed by a notarized agreement of interested heirs which is entered after inheritance opens. Such an agreement must not infringe the rights of the heirs, which are not a party to it, nor the heirs who have the right to an obligatory share.
Footnote. Article 1060 as amended by Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1061. The First Queue Of Heirs By Law
The right of the first queue to inherit by law shall be granted in equal shares to the children of an estate-leaver, including those born alive after his (her) death as well as the spouse and parents of the estate-leaver.
The testator's grandchildren and their issue shall inherit by right of representation. Footnote. Article 1061 is in the wording of the Law of the Republic of Kazakhstan dated
January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1062. The Second Queue Of Heirs By Law
If there are no heirs of the first category the legal heirs of the second category shall be the full and half brothers and sisters of the testator, his (her) grandfather and grandmother both on the side of the father and on the side of the mother.
The children of full and half brothers and sisters of the testator (nephews, nieces of the testator) shall inherit by right of representation.
Footnote. Article 1062 is in the wording of the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1063. The Third Queue Of Heirs By Law
1.If there are no heirs of the first and second categories the legal heirs of the third category shall be the full and half brothers and sisters of the parents of the testator (uncles and aunts of the testator).
2.Cousins of the testator shall inherit by right of representation. Footnote. Article 1063 is in the wording of the Law of the Republic of Kazakhstan dated
January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1064. Next Category Heirs
1. If there are no heirs of the first, second and third categories , the right to inherit by law shall be acquired by the testator's relatives of the third, fourth and fifth degree of kinship who are not qualified as heirs of the preceding categories.
The degree of kinship shall be determined by the number of births that separate relatives from each other. The birth of the testator in this case does not count.
2. Under paragraph 1 of the present article the following shall be called upon to inherit: as heirs of the fourth category: relatives of the third degree of kinship - great grandfathers
and great grandmothers of the testator; as heirs of the fifth category: relatives of the fourth degree of kinship - children of full
nephews and nieces of the testator (grandsons and granddaughters once removed) and brothers and full sisters of their grandfathers and grandmothers (grandsons and granddaughters once removed) and full brothers and sisters of their grandfathers and grandmothers once removed);
as the heirs of the sixth category: relatives of the fifth degree of kinship - children of grandsons and granddaughters of the testator once removed (grand grandsons and grand granddaughters once removed), children of his cousins (nephews and nieces once removed) and children of his grandfathers and grandmothers once removed (uncles and aunts once removed).
3. If there are no heirs of the preceding categories the following shall be called upon to inherit as heirs of the seventh category by law: stepsons, stepdaughters, the stepfather and the stepmother of the testator.
Footnote. Article 1064 is in the wording of the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1065. The Fifth Queue Of Heirs By Law
(Article is excluded by the Law of the Republic of Kazakhstan dated January 12, 2007 No . 225 (shall be enforced from the date of its official publication).
Article 1066. The Sixth Queue Of Heirs By Law
(Article is excluded by the Law of the Republic of Kazakhstan dated January 12, 2007 No . 225 (shall be enforced from the date of its official publication).
Article 1067. Inheritance Under The Right To Representation
1. The share of a legal heir who has died before the opening of the inheritance or simultaneously with the testator shall be passed by right of representation to his relevant issue in the cases specified in paragraph 2 of Article 1061, paragraph 2 of Article 1062 and paragraph 2 of Article 1063 of this Code and it shall be divided between them in equal shares.
2. The issue of an heir who has died before the opening of the inheritance or simultaneously with the testator and who would not have had a right of inheritance under Article 1045 of this Code shall not inherit by the right of representation.
Footnote. Article 1067 is in the wording of the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1068. Incapable Dependents Of An Estate-Leaver
1. Citizens relating to the heirs by law, specified in the articles 1062, 1063, 1064 of this Code incapable on inheritance opening day, but not entering the circle of heirs of that order, which are called to inherit, shall inherit under the law together and on a level with successors of this turn if not less than year to death of heir were on his expense irrespective of whether they lived together with heir or not.
2. Incapable persons who are recognized as heirs by law as indicated in Articles 1061, 1066 of this Code, but who are not the heirs of that queue which is called to inherit, shall inherit together with the heirs of this queue, provided they were dependent on an estate-leaver not less than one year prior to his death, irrespective of whether or not they lived together with the estate-leaver.
If there are other heirs by law, the persons called to inherit on the basis of this Article shall inherit not more than one-fourth part of an inheritance.
Footnote. Article 1068 is in the wording of the Law dated January 12, 2007 No. 225 (shall be enforced from the day of its official publication).
Article 1069. The Right To An Obligatory Share In Inheritance
1. Minors or incapable children of an estate-leaver as well as his (her) incapable spouse and parents shall inherit irrespective of the contents of a will, not less than half of the share which should be due to each of them when inheriting by law (the obligatory share).
2. The obligatory share shall comprise everything which an heir who has the right to such a share, receives by will and (or) by law, including the value of estate consisting of household furniture and objects and value of a testamentary gift established for the benefit of such an heir.
3. Any restrictions and encumbrances established in a will for an heir who has the right to an obligatory share in inheritance shall be valid only with regard to that part of estate he inherits which exceeds the obligatory share.
Article 1070. The Rights Of A Spouse In Inheritance
1. The right of a spouse to inherit by virtue of a will or law shall not infringe any other property rights of the spouse which are associated with being married to an estate-leaver, including the right of ownership to the part of the estate acquired during their marriage.
2. Pursuant to a court decision a spouse may be removed from inheritance by law, provided it is proved that marriage with the estate-leaver actually terminated prior to the opening of inheritance and the spouse lived separately for not less than 5 years prior to the opening of inheritance.
Article 1071. Protection Of Inheritance And Its Managing In The Case Of Inheritance By Law
1. In the case where a part of estate is inherited by will, the will executor appointed by an estate-leaver shall carry out protection of an entire inheritance and its management, including that part of the inheritance which is inherited in accordance with the procedure for inheritance by law.
A will executor appointed in accordance with Article 1059 of this Code by heirs by law or by the court, shall exercise the function of protection of the entire legacy as a whole and its management, unless the heirs by law require the appointment of a trust administrator for the legacy in order to exercise the specified functions with regard to that part of the legacy which is inherited in accordance with the procedure for inheriting by law.
2. A trust administrator of estate shall be appointed by a local notary where inheritance is opened pursuant to one or several heirs' request by law. An heir by law, who disagrees with the appointment of the estate administrator or with the appointment of the given administrator , shall have the right to challenge the appointment of the estate administrator in the court procedure.
3. When heirs by law are absent or unknown, a local executive bodies of the cities of republican status, capital, districts, cities of regional status must petition a notary to appoint a trust administrator for the estate. In the case of appearance of heirs by law, the estate trust administrator may be revoked pursuant to their request with compensation to him of appropriate costs and payment of a reasonable fee at the expense of the estate.
4. An estate trust administrator shall exercise the powers, provided for by Article 1059 of this Code with regard to an executor of a will, so long as it does not otherwise ensue from special considerations of inheriting by law.
5. An estate trust administrator shall have the right to compensation at the expense of the estate of appropriate costs associated with the protection of the estate and its management; and also to a fee, unless it is otherwise stipulated by his agreement with heirs.
Footnote. Article 1071 as amended by the Law of the Republic of Kazakhstan dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005); dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Chapter 60. Acquisition of Inheritance
Article 1072. Acceptance Of Inheritance
1.A heir shall accept an inheritance in order to acquire it. 2. The acceptance of a portion of inheritance by an heir means acceptance of the whole
inheritance due to him (her), whatever the nature and the whereabouts thereof. When an heir is called upon to inherit simultaneously on several grounds the heir may
accept an inheritance he is entitled to on one of these grounds, on several of them or on all of them.
No acceptance of inheritance shall be stipulated by conditions or special clauses. 3. The acceptance of an inheritance by one or several heirs shall not mean an acceptance
of inheritance by other heirs. 4. An accepted inheritance shall be recognized as owned by the heir from the date of
opening of the inheritance, irrespective of the time of the actual acceptance and also irrespective of the time of state registration of the heir's rights to assets of estate where such a right is subject to state registration.
Footnote. Article 1072 is in the wording of Law of the Republic of Kazakhstan dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its official publication).
Article 1072-1. The Methods Of Accepting An Inheritance
1. An inheritance is accepted by the heir filing an inheritance acceptance application or an application for a certificate of the right to the inheritance with the notary or personal representative under law at the place of opening of the inheritance.
If an heir's application is passed to the notary by another person or the signature of the heir is mailed on the application shall be attested by a notary, an official empowered to accomplish notarial actions (paragraph 5 of Article 1051) or a person empowered to attest powers of attorney in compliance with paragraph 3 of Article 167 of this Code).
An inheritance can be accepted through a representative if the power of accepting an inheritance is specifically established in powers of attorney. No powers of attorney are required for a personal representative to accept an estate.
2. Until and unless the contrary is proven, an heir shall be deemed to have accepted an inheritance if he (she) has committed actions evidencing an actual acceptance of the inheritance, in particular, if the heir:
has commenced possession or administration of assets of the estate; has taken measures for preserving assets of the estate, protecting it against third persons'
encroachments or claims; has incurred expenses on his account towards maintenance of assets of the estate; has paid the testator's debts or received from third persons amounts of money payable to
the testator. Footnote. The Code is supplemented with Article 1072-1 by the Law of the Republic of
Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1072-2. The Term For Acceptance Of An Inheritance
1. An inheritance can be accepted within six months after the date of opening of the inheritance. If the inheritance is opened on the date of the alleged death of a citizen ( paragraph 2 of Article 1042 of this Code) the inheritance can be accepted within six months after the date when the court decision whereby the citizen is announced dead becomes final.
2. If a right of inheritance emerges for other persons as the result of an heir's disclaimer of an inheritance or an heir's disqualification on the grounds established by Article 1045 of this Code such person can accept the inheritance within six months after the date of occurrence of their right of inheritance.
Footnote. The Code is supplemented with Article 1072-2 by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication). 1072-3. Acceptance Of An Inheritance Upon The Expiry Of The Established Term
On the application filed late by a heir as concerning the term set for acceptance of an inheritance (Article 1072-2 of this Code) the court may reinstate the term and recognize the heir as having accepted the inheritance if the heir did not know and was not supposed to know of the opening of the inheritance or if the heir has missed the term due to other legitimate reasons and on the condition that the heir who missed the term set for acceptance of the inheritance has filed his (her) application with the court within six months after the time when the causes/reasons for the lateness ceased to exist.
Having recognized an heir as having accepted an inheritance, the court shall determine the shares of all the heirs in the estate and if necessary shall designate measures for safeguarding
the rights of the new heir to his (her) entitlement (paragraph 3 of the present Article). The certificates of a right of inheritance issued earlier shall be recognized by the court as void.
Footnote. The Code is supplemented with Article 1072-3 by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1072-4. The Transfer Of A Right To Accept An Inheritance (Hereditary Transaction)
If an heir called upon to inherit by will or by operation of law dies after the opening of the inheritance without having accepted it within the term established by Article 1072-2 of this Code, the right of accepting his (her) entitlement shall pass to his (her) legal heirs.
The right of accepting an inheritance that belonged to a deceased heir may be exercised by his (her) heirs on general terms.
If the portion of the term set for the purposes of inheritance acceptance that remains after the death of an heir is less than three months, the term shall be extended to reach three months .
Upon the expiry of the term set for inheritance acceptance purposes the heirs of a deceased heir may be recognized by the court as having accepted the inheritance under Article 1072-3 of this Code if the court is of the opinion that the reasons for the lateness are legitimate.
The right of the successor to accept a part of the inheritance as an obligatory share according to article 1069 of this Code doesn't pass to its successors.
Footnote. The Code is supplemented with Article 1072-3 by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1073. Issuing Certificates On The Right To Inherit
1. A local notary where inheritance opens, pursuant to the request of an heir shall be obliged to issue to him a certificate of the right to inherit.
2. A certificate on the right to inherit shall be issued upon expiry of six months from the day when inheritance opens.
When inheriting either by will or by law, certificates may be issued prior to the expiry of the specified period, provided a notary has reliable information that aside the persons who applied to obtain a certificate, there are no more heirs with regard to a given property or the entire legacy.
Article 1074. The Right To Refuse From Inheritance
1. An heir shall have the right to refuse an inheritance within six months from the day when he learned or was to learn on his being called to inherit. If there are good reasons that period may be extended by the court, however not more than for two months.
2. A refusal from an inheritance shall be carried out by way of submission by an heir of an application to a notary in the place where the inheritance opens.
A refusal from an inheritance through a representative is possible where the power for such a refusal is specifically stipulated in the power of attorney.
3. A refusal from an inheritance may not be subsequently renounced or revoked. 4. An heir shall lose the right to refuse an inheritance upon expiry of the period granted to
him for that. He shall lose that right also prior to expiry of that period if he actually entered the ownership of inherited estate, or disposed of it or petitioned for documents which certify his rights to that estate.
5. In the case of a refusal of an inheritance, an heir shall have the right to indicated that he repudiates it for the benefit of other persons from among heirs by will or by law of any queue.
A refusal from an inheritance for the benefit of heirs who are deprived of the inheritance by their testator shall not be allowed.
6. When an heir is called to inherit both by will and by law, he shall have the right to refuse from an inheritance, which is due to him on one of those grounds or from the both.
7. An heir shall have the right to refuse an inheritance, which is due to him by the right of gain (Article 1079 of this Code), irrespective of inheritance of the rest of estate.
8. Except for the cases stipulated in this Article, a refusal of a part of an inheritance, a refusal from the inheritance with stipulations or under conditions shall not be allowed.
Footnote. Article 1074 as amended by the Laws of the Republic of Kazakhstan dated 12.01.2007 No. 225 (shall be enforced from the date of its official publication); dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1075. The Right To Refuse From Receiving A Testamentary Gift
1. A recipient shall have the right to refuse from a testamentary gift. A partial refusal, a refusal with stipulations, under conditions or for the benefit of any other person shall not be allowed.
2. The right stipulated in this Article shall not be related to the right of a recipient of testamentary gift who at the same time is an heir to refuse from inheritance.
3. When a testamentary gift recipient exercises the right stipulated in this Article, an heir encumbered by a testamentary gift shall be discharged from the duty to execute it.
Article 1076. Division Of Inheritance
1. Any heirs by law who accepted inheritance shall have the right to demand division of an inheritance.
Division of an inheritance shall be carried out by agreement of heirs in accordance with the shares owning to them, and in the case of failure to reach a consensus in accordance with the court procedure.
If the inheritance includes a property, for which heir’s rights are not registered and are not recognized as risen without registration, division of the property between heirs shall be carried out after the registration of rights of the heir in the order established by legislation.
2. The rules of this Article shall apply to division of an inheritance between heirs by will in the cases where all inheritance or a part thereof was bequeathed to heirs in shares without an indication of specific assets.
Article 1076 as amended by the Law of the Republic of Kazakhstan dated 25.03.2011 No. 421-IV (shall be enforced upon expiry of ten calendar days after its first official publication).
Article 1077. The Rights Of Absent Heirs
1. When among heirs there are persons whose address is unknown, then the other heirs, an executor of a will (administrator of estate) and a notary shall be obliged to take reasonable steps to establish their location and to call them for inheritance.
2. When an absent heir called to inherit whose address is established does not refuse from an inheritance within the period stipulated in Article 1074 of this Code, the other heirs shall be obliged to notify him of their intent to carry out division of the estate.
When within three months from the date of a notice stipulated in the preceding paragraph, an absent heir fails to notify the other heirs on his wish to participate in a given agreement on division of an inheritance, the other heirs shall have the right to carry out the division in accordance with their agreement having appropriated the share which is due to the absent heir .
3. When within one year from the date that an inheritance opens the address of an absent heir is not established and there is no information on his refusal from the inheritance, the other heirs shall have the right to carry out division in accordance with the rules of the second clause of paragraph 2 of this Article.
4. When there is a conceived but unborn heir, division of property may be carried out only after the birth of such an heir.
When a conceived heir is born alive, then the other heirs shall have the right to carry out division of property and appropriate the inheritance share owing to him. For the protection of the interests of a new-born child, a representative of the body of tutelage and guardianship may be invited for the participation in the division.
Article 1078. Priority Right Of Certain Heirs To Inheritance Estate
1. Heirs who within one year prior to the opening of an inheritance resided together with the estate-leaver shall have the priority right to inherit a dwelling, as well as household objects and utensils.
2. Heirs, who had the right of joint ownership with the estate-leaver with regard to estate, shall have the priority right with regard to inheriting assets, which were in joint ownership.
3. When priority rights are exercised which are indicated in paragraphs 1 and 2 of this Article, the property interests of other heirs participating in division must be complied with. When property which forms an inheritance is insufficient for issuing to them of appropriate shares, the heir who enjoys the priority right must provide to them appropriate monetary or property compensation.
Article 1079. Acquisition Of Shares In Inheritance
1. In the case of a refusal of an heir from an inheritance or his cessation because of the circumstances indicated in this Code, the part of the inheritance that was due to such an heir shall be acquired by the heirs by law who are called for inheritance, and it shall be distributed between them in proportion to their inheritance shares.
When an estate-leaver bequeathed all his estate to heirs appointed by him, a part of the estate which was allocated to an heir who refused it or to an heir who ceased to be, shall be acquired by the other heirs by will and it shall be distributed between them in proportion to their inheritance shares, unless it is otherwise stipulated in a will.
2. The rules contained in paragraph 1 of this Article shall not apply in the following cases: 1) where a sub-heir was appointed to an heir who refused or ceased to be; 2) where an heir refuses from an inheritance for the benefit of a certain person; 3) in the cases where in inheriting by law a refusal or cessation of an heir entails calling to
inheritance of the heirs of the next queue.
Article 1080. Expenditures Which Are Subject To Payment At The Expense Of An Inheritance
Claims concerning compensation for appropriate costs caused by the pre-death disease of an estate-leaver, expenditures for the burial of the estate-leaver, those associated with protection, management of an inheritance and a will execution, as well as payment of a fee to a will executor or to a estate trust administrator, shall be subject to satisfaction at the expense of the inheritance prior to its distribution between heirs. Those claims shall be subject to compensation out of estate value as a priority before any other claims, including those secured by pledge.
Article 1081. Exaction Of Debts Of An Estate-Leaver By Creditors
Creditors of an estate-leaver shall have the right to file their claims ensuing from liabilities of an estate-leaver against a will executor (estate trust administrator) or to heirs who are liable as several debtors within the limits of estate value acquired by each heir.
Article 1082. Inheritance In A Peasant Farm
In the event of the death of a peasant farm member (a member of a collective farm holding), an inheritance shall be open with regard to general rules. Heirs shall have the right to receive monetary compensation in proportion to his (her) share in the common ownership of that property.
Footnote. Article 1082 as amended by Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the date of its official publication).
Article 1083. Ownerless Inheritance
Footnote. The title of Article 1083 as amended by the Law of the Republic of Kazakhstan dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
1. Where there are neither heirs by will nor by law, nor where none of heirs has the right to inherit (Article 1045 of this Code), or where all of them refused from inheritance (Article 1074 of this Code), the estate shall be recognized as ownerless.
2. Ownerless estate shall become communal property where the inheritance was opened. Organization of the work on counting, keeping, assessment, further use and realization of
the ownerless inheritance came into community property, shall be carried out by the body authorized to manage the community property.
The procedure of counting, keeping, assessment, further use and realization of the ownerless inheritance came into community property, shall be determined by the Government of the Republic of Kazakhstan.
3. Estate shall be recognized as ownerless by the court on the basis of a petition of a local executive bodies of cities of republican status, capital, districts, cities of regional status, where the inheritance opened upon expiry of one year from the date the given inheritance opened. Estate may be recognized as ownerless prior to expiry of the specified period if expenditures associated with its protection and management exceeded its value.
4. Protection of ownerless property and its management shall be carried out in accordance with Article 1071 of this Code.
5. The rules, specified by the Articles 1080 and 1081 of this Code shall be applied to the ownerless property.
Footnote. Article 1083 as amended by the Laws of the Republic of Kazakhstan dated 24.12.2001 No. 276; dated 20.12.2004 No. 13 (shall be enforced from 01.01.2005); dated 22.06.2006 No. 147; dated 01.03.2011 No. 414-IV (shall be enforced from the date of its official publication).
Section 7. Private International Law Chapter 61. General Provisions
Article 1084. Definition Of The Law Which Is Subject To Application To Civil And Legal Relations Complicated By A Foreign Elements
1. The law which is subject to application to civil and legal relations with the participation of foreign citizens of foreign legal entities or complicated by any other foreign element shall be determined on the basis of this Code, other legislative acts, international treaties ratified by the Republic of Kazakhstan and international customs being recognized.
2. If in accordance with paragraph 1 of this Article it is impossible to determine the law, which is subject to application, the law shall apply which is the most closely associated with the civil and legal relations complicated by a foreign element.
3. The rules of this section on determining the law, which is subject to application by the court, shall be appropriately applied by other bodies entrusted with the powers to decide on the issue concerning the applicable law.
Article 1085. Categorization Of Legal Concepts (Legal Categorization)
1. Categorization of legal concepts (legal categorization) which is carried out by the court shall be based on their interpretation in accordance with the law of the country of the court, unless it is otherwise stipulated in legislative acts.
2. If legal concepts are not known to the law of the country of the court or are known under different name or with different contents and may not be determined by way of interpreting in accordance with the law of the country of the court then when categorizing legal concepts (legal categorization) the law of the foreign state may also be applied.
Article 1086. Establishing Contents Of Standards Of Foreign Law
1. When applying foreign law the court shall establish the contents of its standards in accordance with their official interpretation, practice of applying and the doctrine in the relevant foreign state.
2. For the purposes of establishing contents of standards of foreign law the court may apply in accordance with the established procedure for assistance and explanation to the Ministry of Justice of the Republic of Kazakhstan and other competent bodies and institutions of the Republic of Kazakhstan including those which are abroad or may hire experts.
3. Persons who participate in a case shall have the right to submit documents, which confirm the contents of standards of foreign law to which they refer to substantiate their
claims or objections and in any other manner to assist the court to establish the contents of those standards.
4. When contents of standards of foreign law in spite of measures undertaken in accordance with this article within a reasonable period of time are not established the law of the Republic of Kazakhstan shall apply.
Article 1087. Reverse Reference And Reference To Law Of A Third Country
1. Any reference to foreign law in accordance with the rules of this section, except for the cases stipulated by this article must be considered as reference to material law and not conflict of laws of an appropriate country.
2. The back reference to the law of the Republic of Kazakhstan and reference to law of a third country shall be accepted in the cases for applying foreign law in accordance with Article 1094, paragraphs 2, 3, 5 of Article 1095, Article 1097 of this Code.
Article 1088. Consequences Of Evading Law
Agreements and other acts of participants of relations which are regulated by this Code aimed to subject relevant relations to other law evading rules of this section concerning law which is subject to application shall be invalid. In this case law which is subject to application in accordance with this section shall apply.
Article 1089. Mutuality
1. The court shall apply foreign law irrespective of that weather in a relevant foreign state the law of the Republic of Kazakhstan applies to similar relations, except for the cases when application of foreign law on the basis of mutuality is provided for by legislative acts of the Republic of Kazakhstan.
2. Where an application of foreign law depends on mutuality it is assumed that it exists, since it is not otherwise proved.
Article 1090. Stipulations On Public Procedures
1. Foreign law shall not apply in the cases where its application contradicts the principles of law and order of the Republic of Kazakhstan (public order of the Republic of Kazakhstan). In those cases the law of the Republic of Kazakhstan shall apply.
2. Denial of application of foreign law may not be based only on the difference of legal political or economic system of the relevant foreign state from political or economic system of the Republic of Kazakhstan.
Article 1091. Application Of Imperative Standards
1. Application of the rules of this section shall not be extended to effect of imperative standards of legislation of the Republic of Kazakhstan which regulate relevant relations irrespective of applicable law in consequence of an indication in a provision itself or in view of their particular importance for ensuring the rights and interests protected by the law of participants of civil circulation.
2. When applying law of any country in accordance with the rules of this section the court may apply imperative rules of law of other country which has close connection with relations, if according to law of that other country such standards must regulate appropriate relations irrespective of the applicable law. In that case the court must consider the purpose and nature of such standards as well as consequences of their application.
Article 1092. Application Of Law Of A Country With Multiple Legal System
In the case where law of a country is to be applied in which there are several territorial or other legal systems, the legal system shall be applied in accordance with the law of that country.
Article 1093. Retortions
Reciprocal restrictions (retortions) with regard to the rights of citizens and legal entities of those states, which have special restrictions of rights of citizens and legal entities of the Republic of Kazakhstan, may be established by the Republic of Kazakhstan.
Chapter 62. Conflict Standards Paragraph 1. Persons, Entities
Article 1094. Personal Law Of A Private Person
1. Personal law of a private person shall be deemed to be law of a country whose citizenship that person has. If a person has two or more nationalities the personal law shall be deemed law of a country to which that person is related most closely.
2. Personal law of a stateless person shall be deemed to be law of a country in which that person resides permanently.
3. The personal law covering refugees shall be deemed to be law of a country that granted them asylum.
Article 1095. Legal Capacity And Capacity Of A Private Person
1. The civil legal capacity of a private person shall be defined by his own law. Thus foreign citizens and persons without citizenship shall have civil legal capacity in the Republic
of Kazakhstan equally with citizens of the Republic of Kazakhstan, except for the cases established by legislative acts or international treaties of the Republic of Kazakhstan.
2. Legal capacity and capability of a private person shall be defined by its personal law. 3. Civil capability of a private person with regard to transactions and obligations which
emerge in consequence to causing harm shall be determined in accordance with law of a country where transactions were committed or where obligations emerged because of causing harm.
4. The capability of a private person to be an individual entrepreneur and to have the rights and obligations connected with that shall be determined in accordance with law of a country where the private person is registered as an individual entrepreneur. If there is no country of registration law of the country where the principal place of performance of individual entrepreneurial activity is located shall apply.
5. Recognition of a private person as incapable or with limited capability shall be subject to law of the court country.
Footnote. Article 1095 as amended by the Law of the Republic of Kazakhstan dated January 12, 2007 No. 225 (shall be enforced from the day of its official publication).
Article 1096. Recognition Of A Private Person As Missing And Announcement On Him As Deceased
Recognition of a private person as missing and announcement on him as deceased shall be subject to law of the country of the court.
Article 1097. Name Of A Private Person
The right of a private person to name, its use and protection shall be defined by his individual law, unless it otherwise ensues from the rules, provided for by paragraphs 5 and paragraph 7 of Article 15, Articles 1103 and 1120 of this Code.
Article 1098. Registration Of Acts Of Civil Status Of Citizens Of The Republic Of Kazakhstan Outside The Boundaries Of The Republic Of Kazakhstan
Registration of civil status acts of the citizens of the Republic of Kazakhstan who reside beyond the boundaries of the Republic of Kazakhstan shall be carried out by consular institutions of the Republic of Kazakhstan. In that case legislative acts of the Republic of Kazakhstan shall apply.
Article 1099. Recognition Of Documents Issued By Bodies Of Foreign States To Certify Civil Status Acts
Documents issued by authorized bodies of foreign states to certify civil status acts performed beyond the boundaries of the Republic of Kazakhstan in accordance with laws of relevant states with regard to citizens of the Republic of Kazakhstan, foreign citizens and stateless persons shall be recognized as valid in the Republic of Kazakhstan provided there is legalization.
Article 1100. Law Of A Legal Entity
The law of a legal entity shall be deemed to be law of a country where that entity was established.
Article 1101. Legal Capacity Of A Legal Entity
1. The civil legal capacity of a legal entity shall be defined by the law of the legal entity. 2. A foreign legal entity may not refer to restriction of powers of its body or
representative with regard to carrying out a transaction which is not known to law of the country in which the body or the representative of the foreign legal entity carried out that transaction
3. Civil legal capacity of foreign organizations that are not legal entities according to foreign law shall be determined in accordance with law of the country where an organization is established.
The rules of this Code which regulate activities of legal entities which are commercial organizations shall apply to activities of such organizations if the law of the Republic of Kazakhstan is applicable, unless it otherwise ensues from legislation of the Republic of Kazakhstan or essence of an obligation.
Article 1102. The Participation Of The State In Civil And Legal Relations With Foreign Elements
1. The rules of this section shall apply to civil and legal relations with foreign elements with participation of the state on the general basis, unless it is otherwise provided for by legislative acts.
2. In civil-law relations with a foreign element the Republic of Kazakhstan shall use juridical immunity concerning itself and the property from jurisdiction of courts of other state, including judicial immunity, immunity from maintenance of the claim and immunity from compulsory execution of the judicial certificate if unless otherwise established:
In the international contract of the Republic of Kazakhstan; In the written agreement which is not the international contract of the Republic of
Kazakhstan; By the legal statement or the notice in writing within the limits of concrete trial.
Footnote. Article 1102 is the wording of the Law of the Republic of Kazakhstan dated 05.02.2010 No. 249-I
Paragraph 2. Personal Non-Property Rights
Article 1103. Protection Of Personal Non-Property Rights
The law of the country where an action or any other circumstance has taken place which serves as the basis for claim to protect such rights shall apply to personal non-property rights.
Paragraph 3. Transactions, Representation, Limitation Period
Article 1104. Form Of A Transaction
1. Form of a transaction shall be subject to law of the place where it was carried out. However, transactions carried out abroad may not be recognized as invalid in consequence of non-compliance with its form if the requirements of law of the Republic of Kazakhstan are complied with.
2. Foreign economic transactions to which at least one of the parties is a legal entity of the Republic of Kazakhstan or a citizen of the Republic of Kazakhstan shall be carried out in writing irrespective of the place of conclusion of the transaction.
3. Form of a transaction with regard to immovable property shall be subject to law of the country where that property is located, and with regard to immovable property which is entered into the State Register in the Republic of Kazakhstan - to law of the Republic of Kazakhstan.
Article 1105. Power Of Attorney
Form and the validity period of power of attorney shall be determined in accordance with law of the country where power of attorney was issued. However, power of attorney may not be recognized as invalid in consequence of non-compliance with the form provided the latter complies with the requirements of law of the Republic of Kazakhstan.
Article 1106. Limitation Period
1. The statute of limitation shall be determined in accordance with law of the country that is applicable for regulation of relevant relation.
2. The requirements to which the statute of limitation shall not apply shall be determined in accordance with law of the Republic of Kazakhstan where at least one of participants of relevant relation is a citizen of the Republic of Kazakhstan or a legal entity of the Republic of Kazakhstan.
Paragraph 4. Property Rights
Article 1107. General Provisions Concerning Law Applicable To Property Rights
1. The right of ownership and other property rights to immovable and movable assets shall be determined in accordance with law of the country where those properties are located, unless it is otherwise provided for by legislative acts of the Republic of Kazakhstan.
2. The recognition of properties as movable or immovable assets as well as other categorization of assets shall be determined in accordance with law of the country where those properties are located.
Article 1108. Emergence And Termination Of Property Rights
1. Emergence and termination of property rights to properties shall be determined in accordance with law of the country where those properties were located at the moment when the action or any other circumstance has taken place which served as the base for emergence or termination of property rights, unless it is otherwise provided for by legislative acts of the Republic of Kazakhstan.
2. Emergence and termination of property rights to properties which are a subject of transaction shall be determined in accordance with law of the country to which that transaction is subordinated, unless it is otherwise stipulated by the contract of the parties.
3. The emergence of the right of ownership with regard to assets in consequential of prescription shall be defined by law of the country where the property was at the moment of termination of the period of prescription.
Article 1109. Property Rights To Transport Vehicles And Other Properties Which Are Subject To Entering Into State Register
Property rights to transport vehicles and other properties which are subject to the state registration shall be determined in accordance with law of the country where those transport vehicles or property are entered into the State Register.
Article 1110. Property Rights To Movable Properties In Route
The right of ownership and other property rights to movable properties which are en route under a transaction shall be determined in accordance with law of the country from which those assets were shipped, unless it is otherwise stipulated in the contract of the parties.
Article 1111. Protection Of Property Rights
1. The law of the country where properties are located or law of the country of the court shall apply to the protection of the right of ownership and other property rights at the discretion of an applicant.
2. Law of the country in which those properties are located shall apply to the protection of the right of ownership and any other property rights to immovable properties. With regard to assets, which are entered into the State Register of the Republic of Kazakhstan, law of the Republic of Kazakhstan shall apply.
Paragraph 5. Contractual Obligations
Article 1112. Selection Of Law By Agreement Of Contractual Parties
1. A contract shall be regulated by law of the country selected by agreement of the parties, unless it is otherwise stipulated in legislative acts of the Republic of Kazakhstan.
2. An agreement of the parties concerning selection of applicable law must evidently express or directly ensue from provisions a contract and circumstances of business being considered in total.
3. The parties to a contract may select applicable law both for the contract as a whole and for its separate parts.
4. The selection of applicable law may be made by the parties to a contract at any time both when entering into the contract and subsequently. The parties may also at any time agree to alter the law applicable to the contract.
Article 1113. The Law Applicable To A Contract When There Is No Agreement Of The Parties
1. When there is no agreement of the parties to a contract with regard to law which is applicable to that contract the law of the country shall apply where a party defined as follows was found or has the place of residence or principal place of business:
1) seller - in a purchase and sale contract; 2) donator - in a donation contract; 3) lessor or landlord - in the contract of property lease (lease); 4) lender - in the contract of charge-free properties use; 5) contractor - in a contract; 6) carrier - in a transportation contract; 7) forwarding agent - in a transport forwarding contract; 8) creditor - in a loan or other credit contract; 9) agent - in an agency agreement contract ; 10) commissioner - in a commission contract; 11) custodian - in a custody contract;
12) insurer - in an insurance contract; 13) guarantor - in a guarantee contract ; 14) pledger - in a pledge contract; 15) licenser - in a license contract on use of exclusive rights.
2. Law of the country where that property is located shall apply to the rights and obligations under the contract the scope of which is property as well as under the contract on property trust management, and with regard to property which is entered into the State Register of the Republic of Kazakhstan law of the Republic of Kazakhstan.
3. If there is no consensus of the parties to a contract with regard to applicable law irrespective of the provisions of paragraph 1 of this Article the following shall apply:
1) to contracts on joint activities and construction contracts the law of the country where such activities are carried out or results are created as stipulated in the contract.
2) to the contract concluded in accordance with results of an auction (tender, auction) or at an exchange - the law of the country where the auction takes place or an exchange is located.
4. To the contracts which are not listed in paragraphs 1, 3 of this Article when there is no consensus of the parties on applicable law the law of the country shall apply where the party which carries out execution which has decisive significance for the contents of such contract is founded, has place of residence or principal place of business. If it is impossible to determine execution which has principal significance to the contents of the contract the law of the country to which the contract is the most closely related shall apply.
5. The law of the place of carrying out formal acceptance with regard to such formal acceptance of execution under the contract shall be taken into consideration, since the parties did not agree otherwise.
6. If commercial terms accepted in international turns of speech are used in the contract then when there are no other indications it shall be considered that the parties have agreed to apply usual business turns of speech to their relations which exist with regard to appropriate commercial terms.
Article 1114. The Law Applicable To The Contracts On Creation Of A Legal Entity With Foreign Participation
1. The law of the country where a legal entity is to be founded or has been founded shall apply to the contracts on formation of a legal entity with foreign participation.
2. Relations being regulated by this article shall comprise relations associated with creation and termination of a legal entity, transfer of share of participation in it and other relations between participants of a legal entity connected with their mutual rights and obligations (in particular those determined by subsequent contracts).
3. Provisions of this Article shall apply also in the case of establishing mutual rights and obligations of participants of a legal entity with foreign participation by other foundation documents.
Article 1115. The Sphere Of Application Of Applicable Law
1. The law, which is applicable to contracts by virtue of provisions of this paragraph, shall comprise in particular the following:
1) interpretation of the contract; 2) the rights and obligations of parties; 3) execution of the contract; 4) consequences of a failure to execute or improper execution of the contract; 5) termination of that contract; 6) reasons and consequences of invalidity the contracts; 7) assignment of claims and transfer of debt in connection to the contract. 2. With regard to method and procedure for execution as well as measures which must be
taken in the case of improper execution, except for applicable law also the law of the country in which execution takes place shall be taken into account.
Paragraph 6. Non-Contractual Obligations
Article 1116. Obligations Of Unilateral Acts
The law of the place of carrying out an act shall apply to obligations of unilateral acts ( public promise of award, activities in somebody else interests without instruction etc.). The place of carrying out a unilateral act shall be determined in accordance with the law of the Republic of Kazakhstan.
Article 1117. Obligations In Consequence Of Causing Harm
1. The rights and obligations under commitments which emerge in consequence of causing harm shall be determined in accordance with the law of the country where the action took place or any other circumstances which cause aa the basis for claims to compensate for harm.
2. The rights and obligations under commitments which emerge in consequence of causing harm abroad where the parties are citizens or legal entities of the same state shall be determined in accordance with the law of that state.
3. Foreign law shall not apply if an action or other circumstances that serve as the basis for claims to compensate harm in accordance with legislative acts of the Republic of Kazakhstan is not unlawful.
Article 1118. Responsibility For Loss Caused To A Consumer
At a consumer's discretion to claims on compensation of losses caused to the consumer in connection with purchase of goods or rendering of services shall apply the following:
1) the law of the country where the place of residence of the consumer is located; 2) the law of the country where the place of residence or location of a manufacturer or
person who has rendered the service is; 3) the law of the country where a consumer has purchased goods or where the service has
been rendered to him.
Article 1119. Unreasonable Enrichment
1. To circumstances, which emerge in consequence of unreasonable enrichment, the law shall apply of the country where the enrichment took place.
2. If unreasonable enrichment emerges in consequence of cessation of the basis according to which property was purchased or saved an applicable law shall be determined in accordance with the law of the country to which that basis was subject.
3. The concept of unreasonable enrichment shall be defined in accordance with the law of the Republic of Kazakhstan.
Paragraph 7. Intellectual Property
Article 1120. The Rights To Intellectual Property
1. The law of the country where protection of such rights is sought shall apply to intellectual property rights.
2. Contracts having the rights to intellectual property as a scope shall be regulated by law being determined in accordance with the provisions of this section concerning contractual obligations.
Paragraph 8. Inheritance Law
Article 1121. Relations Connected With Inheritance
The relations connected with inheritance shall be determined in accordance with the law of the country where an estate-leaver had the last permanent place of residence, since it is not otherwise provided for by Articles 1122 and 1123 of this Code, if the estate-leaver did not select in his will the law of the country to which he is a citizen.
Article 1122. The Capability Of Persons With Regard To Drawing Up And Renunciation Of Wills, Forms Of Wills And Acts Of Their Renunciation
Capability of a person to draw up or renounce a will as well as the form of the will and act of its abolition shall be defined in accordance with the law of the country where a testator had permanent place of residence at the moment of drawing up the act, unless the testator selected in the will the law of the country to which he was a citizen. However, a will or its abolition may not be recognized as invalid in consequence of a failure to comply with the form if the latter satisfies the requirements of the law of the place of drawing up an act or with requirements of the Republic of Kazakhstan.
Article 1123. Inheritance of Immovable Property and Property Which is Subject to Entering into the State Register
The inheritance of immovable property shall be determined in accordance with the law of the country where this property is located and property that was entered into the State Register in the Republic of Kazakhstan in accordance with the law of the Republic of Kazakhstan. The same law shall define the persons' capability to draw up or abolish wills as well as forms of the latter if specified assets are bequeathed.
Article 1123. Inheritance Of Immovable Property And The Property Which Is Subject To Inclusion In The State Register
Inheritance of immovable property is determined by the law of the country where the property is located, and the property, which is registered in the public register of the Republic of Kazakhstan - by the law of the Republic of Kazakhstan. The same right is determined by the ability of a person to make or revoke a will, and the form of the latter if bequeathed the specified property.
Paragraph 9. Guardianship and Tutelage
Article 1124. Guardianship And Tutelage
1. Guardianship and tutelage over minors, incapable full age persons or full age persons who have limited capabilities shall be established and abolished according to individual law of a person with respect to whom guardianship and tutelage are established or abolished.
2. A tutor's (guardian) duty to take guardianship (tutelage) shall be determined according to individual law of a person who is appointed as a tutor (guardian).
3. Legal relations between a tutor (guardian) and a person being under guardianship and tutelage shall be determined according to the law of the country an institution which has appointed the tutor (guardian). However, in the case of a person being under guardianship and tutelage resides in the Republic of Kazakhstan then the law of the Republic of Kazakhstan shall apply if it is more favorable for this person.
4. Guardianship and tutelage established over citizens of the Republic of Kazakhstan who reside beyond the boundaries of the Republic of Kazakhstan shall be recognized as valid in the Republic of Kazakhstan if there are no objections based on the law of an appropriate consular institution of the Republic of Kazakhstan against establishing guardianship and tutelage or against its recognition.
President of the Republic of Kazakhstan
© 2012. «Institute of legislation and legal information of the Republic of Kazakhstan» of the Ministry of Justice of the Republic of Kazakhstan
ҚАЗАҚСТАН РЕСПУБЛИКАСЫНЫҢ АЗАМАТТЫҚ КОДЕКСI
Мұрағаттық версия Қазақстан Республикасының Кодексі 1994 жылғы 27 желтоқсандағы № 268-ХIII.
Р Қ А О - н ы ң е с к е р т п е с і ! Қазақстан Республикасы Жоғарғы Кеңесінің 1994 жылғы 27 желтоқсандағы
№ 269-XIII қаулысымен қолданысқа енгізілді. МАЗМҰНЫ
Ескерту. ҚР 1999.11.04 N 472 Заңымен енгізілген өзгерістер 2000 жылғы 1 қаңтардан бастап қолданысқа енгіз іледі .
Ескерту. Мәтiнде "бөлiм" деген сөздiң алдындағы "I - IІІ" деген цифрлар тиiсiнше "1 - 3" деген цифрлармен ауыстырылды - ҚР 2004.12.20 № 13 Заңымен ( 2005 жылғы 1 қаңтардан бастап қолданысқа енгізіледі).
Р Қ А О - н ы ң е с к е р т п е с і ! Кодекске өзгеріс енгізу көзделген - ҚР 03.07.2019 № 262-VI Заңымен (
01.01.2020 бастап қолданысқа енгізіледі).
Жалпы бөлім 1 бөлiм. Жалпы ережелер 1-тарау. Азаматтық-құқықтық қатынастарды реттеу
1-бап. Азаматтық заңдармен реттелетiн қатынастар
1. Азаматтық заңдармен тауар-ақша қатынастары және қатысушылардың теңдiгiне негiзделген өзге де мүлiктiк қатынастар, сондай-ақ мүлiктiк қатынастарға байланысты мүлiктiк емес жеке қатынастар реттеледi. Азаматтық заңдармен реттелетiн қатынастардың қатысушылары азаматтар, заңды тұлғалар, мемлекет, сондай-ақ әкiмшiлiк-аумақтық бөлiнiстер болып табылады.
2. Мүлiктiк қатынастарға байланысы жоқ мүлiктiк емес жеке қатынастар азаматтық заңдармен реттеледi, өйткенi олар заң құжаттарында өзгеше көзделмеген, не мүлiктiк емес жеке қатынастар мәнiнен туындамайды.
3. Осы баптың 1-тармағында аталған белгiлерге сай келетiн отбасылық, еңбек қатынастары мен табиғи ресурстарды пайдалану және айналадағы ортаны қорғау жөнiндегi қатынастарға азаматтық заңдар бұл қатынастар тиiсiнше отбасылық, еңбек заңдарымен, табиғи ресурстарды пайдалану және айналадағы ортаны қорғау туралы заңдармен реттелмеген жағдайларда қолданылады.
4. Заң құжаттарында көзделген реттердi қоспағанда, бiр тараптың екiншiсiне әкiмшiлiк немесе өзге де билiк жағынан бағынуына негiзделген мүлiктiк қатынастарға, соның iшiнде салық жөнiндегi және басқа бюджеттiк қатынастарға азаматтық заңдар қолданылмайды.
2-бап. Азаматтық заңдардың негiзгi бастаулары
1. Азаматтық заңдар өздерi реттейтiн қатынастарға қатысушылардың теңдiгiн , меншiкке қол сұқпаушылықты, шарт еркiндiгiн, жеке iстерге кiмнiң болса да озбырлықпен араласуына жол беруге болмайтындығын, азаматтық құқықтарды кедергiсiз жүзеге асыру, нұқсан келтiрiлген құқықтардың қалпына келтiрiлуiн, оларды соттың қорғауын қамтамасыз ету қажеттiгiн тануға негiзделедi.
2. Азаматтар мен заңды тұлғалар өздерiнiң азаматтық құқықтарына өз еркiмен және өз мүддесiн көздей отырып ие болады және оларды жүзеге асырады , сондай-ақ егер заңнамалық актілерде өзгеше белгіленбесе, құқықтарынан бас тартады. Олар шарт негiзiнде өздерiнiң құқықтары мен мiндеттерiн анықтауда және оның заңнамаға қайшы келмейтін кез келген талаптарын белгiлеуде ерiктi.
3. Тауарлар, қызмет және ақша Қазақстан Республикасының бүкiл аумағында емiн-еркiн орын ауыстырып және айналысқа түсiп отырады. Егер қауiпсiздiктi қамтамасыз ету, адамдардың өмiрi мен денсаулығын қорғау, табиғат пен мәдени қазыналарды сақтау үшiн қажет болса, заң құжаттарына сәйкес тауарлар мен қызметтiң орын ауыстыруына шектеулер енгiзiледi.
Ескерту. 2-бапқа өзгеріс енгiзiлдi - ҚР 1997.07.11 N 154, 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
3-бап. Қазақстан Республикасының азаматтық заңдары
1. Қазақстан Республикасының азаматтық заңдары Қазақстан Республикасының Конституциясына негізделеді және осы Кодекстен, Қазақстан Республикасының оған сәйкес қабылданған өзге де заңдарынан, Қазақстан Республикасы Президентiнiң Заң күшi бар Жарлықтарынан, Парламенттiң қаулыларынан, Парламенттiң Сенаты мен Мәжiлiсiнiң қаулыларынан (заң актiлерiнен), сондай-ақ осы Кодекстiң 1-бабының 1,2-тармақтарында аталған қатынастарды реттейтiн Қазақстан Республикасы Президентiнiң Жарлықтарынан , Қазақстан Республикасы Үкiметiнiң қаулыларынан тұрады.
2. Осы Кодекстiң 1-бабының 3-тармағында аталғандарды қоспағанда, азаматтық құқықтың Қазақстан Республикасының заң актiлерiнде қамтылған нормалары осы Кодекстiң ережелерiне қайшы келген жағдайда осы Кодекстiң ережелерi қолданылады, Қазақстан Республикасының заңдарында қамтылған
және осы Кодекстiң нормаларына қайшы келетiн азаматтық құқық нормалары Кодекске тиiстi өзгерiстер енгiзiлгеннен кейiн ғана қолданылады.
Қазақстан Республикасы азаматтық заңнамасының нормалары Қазақстан Республикасы азаматтық заңнамасының негізгі бастауларына қайшы келмейді.
3. Банктер мен астық қабылдау кәсiпорындарының құрылуына, қайта ұйымдастырылуына, банкроттығына және таратылуына, банк қызметiн бақылау мен оны аудиторлық тексеруге, астық қабылдау кәсiпорындарының қызметiн бақылауға, банк операцияларының жекелеген түрлерiн лицензиялауға, банктерді қайта құрылымдауға, банктерді лицензияларынан айыру салдарларының туындауына, астық қабылдау кәсiпорындарының қойма куәлiктерiмен операцияларды жүзеге асыруға байланысты қатынастар банк қызметiн және астық қабылдау кәсiпорындарының қызметiн реттейтiн заң актiлерiне қайшы келмейтiн бөлiгiнде осы Кодекспен реттеледi.
Банктер мен олардың клиенттерi арасындағы қатынастар, сондай-ақ клиенттер арасындағы банк арқылы қатынастар азаматтық заңдармен осы баптың 2-тармағында белгiленген тәртiп бойынша реттеледi.
4. Азаматтық қатынастар, егер әдеттегi құқықтар, соның iшiнде iскерлiк қызмет өрiсiндегi әдеттегi құқықтар Қазақстан Республикасы аумағында қолданылып жүрген азаматтық заңдарға қайшы келмесе, солармен реттелуi мүмкiн.
5. Министрлiктер және өзге де орталық атқарушы органдар, жергiлiктi өкiлдi және атқарушы органдар, осы Кодексте және өзге де азаматтық заң актiлерiнде көзделген жағдайлар мен шектерде азаматтық қатынастарды реттейтiн актiлер шығара алады.
6. Азаматтар мен заңды тұлғалардың осы Кодексте және Қазақстан Республикасының өзге де заң құжаттарында белгiленген құқықтарын мемлекеттiк басқару органдары мен жергiлiктi өкiлдi және атқарушы органдардың құжаттары шектей алмайды. Мұндай құжаттар қабылданған кезден бастап жарамсыз болып табылады және қолданылмауға тиiс.
7. Егер заң құжаттарында өзгеше көзделмесе, шетелдiк жеке және заңды тұлғалар, сондай-ақ азаматтығы жоқ адамдар азаматтық заңдарда Қазақстан Республикасының азаматтары мен заңды тұлғалары үшiн қандай құқықтар мен мiндеттер көзделсе, нақ сондай құқықтарға ие болуға қақылы және сондай мiндеттердi орындауға мiндеттi.
8. Егер Қазақстан Республикасы ратификациялаған халықаралық шартта Қазақстан Республикасының азаматтық заңдарындағыдан өзгеше ережелер белгiленген болса, аталған шарттың ережелерi қолданылады. Халықаралық
шарттан оны қолдану үшiн заң шығару талап етiлгеннен басқа жағдайларда, азаматтық қатынастарға Қазақстан Республикасы ратификациялаған халықаралық шарттар тiкелей қолданылады.
Ескерту. 3-бапқа өзгеріс енгізілді - ҚР Президентiнiң 1995.08.31 N 2447 заң күші бар Жарлығымен, ҚР 1998.03.02 N 211, 2001.01.15 N 141, 2009.04.29 N 154- IV, 2009.07.11 N 185-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 168-VІ (алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
4-бап. Азаматтық заңдардың уақытқа қарай қолданылуы
1. Азаматтық заң құжаттарының керi күшi болмайды және өздерi күшiне енгiзiлгеннен кейiн пайда болған қатынастарға қолданылады. Азаматтық заң құжаттарының заңдық күшi өздерi күшiне енгiзiлгенге дейiн пайда болған қатынастарға бұл оларда тiкелей көзделген реттерде қолданылады.
2. Азаматтық заң құжаттары күшiне енгiзiлгенге дейiн пайда болған қатынастар бойынша ол өзi күшiне енгiзiлгеннен кейiн пайда болған құқықтар мен мiндеттерге қолданылады. Азаматтық заң құжаттары күшiне енгiзiлгенге дейiн жасалған шарт бойынша тараптардың қатынастары осы Кодекстiң 383- бабына сәйкес реттеледi.
5-бап. Азаматтық заңдардың ұқсастығына қарай қолданылуы
1. Осы Кодекстiң 1-бабындағы 1 және 2-тармақтарда көзделген қатынастар заңдармен немесе тараптардың келiсiмiмен тiкелей реттелмеген және оларға қолдануға келетiн әдет-ғұрып болмаған жағдайларда, мұндай қатынастарға, олардың мәнiне қайшы келмейтiн болғандықтан, азаматтық заңдардың ұқсас қатынастарды реттейтiн қалыптары қолданылады (заң ұқсастығы).
2. Аталған жағдайларда заң ұқсастығын пайдалану мүмкiн болмаса, тараптардың құқықтары мен мiндеттерi азаматтық заңдардың жалпы негiздерi мен мәнi және адалдық, парасаттылық пен әдiлеттiлiк талаптары негiзге алына отырып белгiленедi (құқық ұқсастығы).
6-бап. Азаматтық заң қалыптарының түсiнiлуi
1. Азаматтық заң қалыптары оларда айтылған сөздердiң дәлме-дәл мәнiне сәйкес түсiнiлуге тиiс. Заң қалыптарының текстiнде қолданылған сөздердi әртүрлi түсiну мүмкiн болған жағдайда Қазақстан Республикасы
Конституциясының ережелерiне және азаматтық заңдардың осы тарауда, ең алдымен оның 2-бабында баяндалған негiзгi қағидаттарына сай келетiн түсiнiкке басымдық берiледi.
2. Азаматтық заң қалыптарының дәл мағынасын анықтау кезiнде, егер бұл осы баптың 1-тармағында баяндалған талаптарды бұрмаламайтын болса, ол күшiне енгiзiлген кездегi тарихи жағдайларды және оның сот тәжiрибесiндегi түсiнiлуiн ескеру қажет. 7-бап. Азаматтық құқықтар мен мiндеттердiң пайда болу, өзгеру және тоқтатылу негiздерi
Азаматтық құқықтар мен мiндеттер Қазақстан Республикасының заңнамасында көзделген негiздерден, сондай-ақ азаматтар мен заңды тұлғалардың әрекеттерiнен пайда болады, өзгереді және тоқтатылады, өйткенi, осы әрекеттер азаматтық заңнамада көзделмегенiмен, олардың жалпы бастаулары мен мәнiне байланысты азаматтық құқықтар мен мiндеттердi туындатады.
Осыған сәйкес азаматтық құқықтар мен мiндеттер: 1) Қазақстан Республикасының заңнамасында көзделген шарттардан және
өзге де мәмiлелерден, сондай-ақ азаматтық заңнамада көзделмегенімен, бірақ Қазақстан Республикасының заңнамасына қайшы келмейтiн мәмiлелерден;
2) Қазақстан Республикасы заңнамасының күшімен азаматтық-құқықтық салдарларға алып келетін әкiмшiлiк актілерден;
3) азаматтық құқықтар мен міндеттерді белгілеген сот шешiмiнен; 4) Қазақстан Республикасының заңнамалық актілерінде тыйым салынбаған
негiздер бойынша мүлiктi жасау, жою, сатып алу немесе оны иеліктен шығару, сондай-ақ мүлікке құқықтан бас тарту нәтижесiнде;
5) өнертабыстарды, өнеркәсiптiк үлгiлерді, ғылым, әдебиет және өнер туындыларын және зияткерлік қызметтiң өзге де нәтижелерiн жасау салдарынан;
6) басқа тұлғаға зиян келтiру салдарынан, сол сияқты басқа тұлға есебiнен мүлiктi негiзсiз сатып алу немесе жинау (негiзсiз баю) салдарынан;
7) азаматтар мен заңды тұлғалардың өзге де әрекеттерi салдарынан; 8) Қазақстан Республикасының заңнамасы азаматтық-құқықтық
салдарлардың басталуын байланыстыратын оқиғалар салдарынан пайда болады, өзгереді және тоқтатылады.
Ескерту. 7-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
8-бап. Азаматтық құқықтарды жүзеге асыру
1. Азаматтар мен заңды тұлғалар өздерiне берiлген азаматтық құқықтарды, соның iшiнде өздерiн қорғау құқығын өз қалауынша пайдаланады.
2. Азаматтар мен заңды тұлғаларға тиесілі құқықтардың жүзеге асырылмауы, заңнамалық актілерде көзделген жағдайларды қоспағанда, бұл құқықтардың тоқтатылуына әкеп соқпайды.
3. Азаматтық құқықтарды жүзеге асыру басқа құқық субъектiлерiнiң құқықтарын және заңдармен қорғалатын мүдделерiн бұзбауға, айналадағы ортаға зиян келтiрмеуге тиiс.
4. Азаматтар мен заңды тұлғалар өздерiне берiлген құқықтарды жүзеге асырған кезде адал, парасатты және әдiл әрекет жасап, заңдардағы талаптарды, қоғамның адамгершiлiк қағидаттарын, ал кәсiпкерлер - бұған қоса iскерлiк әдептiлiк ережелерiн сақтауға тиiс.
Бұл мiндеттi шарт арқылы алып тастауға немесе шектеуге болмайды. Азаматтық құқық қатынастарына қатысушылардың адал, парасатты және әдiл әрекет жасауы көзделедi.
5. Азаматтар мен заңды тұлғалардың басқа тұлғаға зиян келтiруге, құқықты өзге нысандарда теріс пайдалануға, сондай-ақ құқықты оның мақсатына қайшы келетiндей етiп жүзеге асыруға бағытталған әрекеттерiне жол берiлмейдi.
6. Ешкім де өзінің теріс пиғылды мінез-құлқымен артықшылық алуға құқылы емес.
7. Осы баптың 3-6-тармақтарында көзделген талаптар сақталмаған жағдайда сот адамға тиесілі оның құқығын қорғаудан бас тарта алады.
Ескерту. 8-бапқа өзгерістер енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
9-бап. Азаматтық құқықтарды қорғау
1. Азаматтық құқықтарды қорғауды сот, төрелiк: құқықтарды тану; құқық бұзылғанға дейiн болған жағдайды қалпына келтiру; құқықты бұзатын немесе оның бұзылу қаупiн туғызатын әрекеттердің жолын кесу; мiндеттi заттай орындатуға ұйғарым шығару; залалдарды, тұрақсыздық айыбын өндiрiп алу; дау айтылатын мәмiленi жарамсыз деп тану және оның жарамсыздығы салдарын қолдану, маңызсыз мәміленің жарамсыздығы салдарын қолдану; моральдық зиянның өтемiн төлету; құқықтық қатынастарды тоқтату немесе өзгерту; мемлекеттiк басқару органының немесе жергiлiктi өкiлдi не атқарушы органның Қазақстан Республикасының заңнамасына сәйкес келмейтiн актісін жарамсыз немесе қолдануға жатпайды деп тану; азаматқа немесе заңды тұлғаға құқықты
иеленуіне немесе жүзеге асыруына кедергi келтіргені үшiн мемлекеттiк басқару органынан немесе лауазымды адамнан айыппұл өндiрiп алу арқылы, сондай-ақ Қазақстан Республикасының заңнамалық актілерінде көзделген өзге де тәсілдермен жүзеге асырады.
Заңды тұлғалардың моральдық зиянды өтетуге құқығы жоқ. 2. Бұзылған құқықты қорғау үшiн өкiмет билiгi немесе басқару органына
өтiнiш жасау, егер заң құжаттарында өзгеше көзделмесе, құқық қорғау туралы талап қойып сотқа жолдануға кедергi жасамайды.
3. Заң құжаттарында арнайы көзделген реттерде азаматтық құқықтарды қорғау құқығы бұзылған адамның тiкелей iс жүзiндегi немесе заңдық әрекеттерiмен жүзеге асырылуы мүмкiн (өзiн-өзi қорғау).
4. Құқығы бұзылған адам, егер заң құжаттарында немесе шартта өзгеше көзделмесе, өзiне келтiрiлген залалдың толық өтелуiн талап ете алады.
Құқығы бұзылған адам жасаған немесе жасауға тиiстi шығыстар, оның мүлкiнiң жоғалуы немесе зақымдануы (нақты нұқсан), сондай-ақ сол адамның құқығы бұзылмаған болса, дағдылы айналым жағдайында оның алуына болатын, бiрақ алынбай қалған табыстары (айрылып қалған пайда) залалдар деп түсiнiледi.
5. Мемлекеттiк өкiмет билiгi органының, өзге де мемлекеттiк органның заңдарға сай келмейтiн құжат шығаруы, сондай-ақ осы органдардың лауазымды адамдарының әрекетi (әрекетсiздiгi) салдарынан азаматқа немесе заңды тұлғаға келтiрiлген залалды Қазақстан Республикасы немесе тиiсiнше әкiмшiлiк-аумақтық бөлiнiс өтеуге тиiс.
6. Егер тәртiп бұзудың құқықтық салдарының пайда болуы тәртiп бұзушының кiнәсiне байланысты болса, заң құжаттарында өзгеше көзделгеннен басқа жағдайларда, ол кiнәлi деп ұйғарылады.
Ескерту. 9-бапқа өзгерістер енгізілді - ҚР 03.07.2013 125-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 08.04.2016 № 489-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
10-бап. Кәсiпкерлер мен тұтынушылардың құқықтарын қорғау
1. Азаматтардың, оралмандардың және заңды тұлғалардың мүлікті пайдалану, тауарларды өндіру, сату, жұмыстарды орындау, қызметтерді көрсету арқылы таза кіріс алуға бағытталған, жеке меншік құқығына (жеке кәсіпкерлік) не шаруашылық жүргізу немесе мемлекеттік кәсіпорынды жедел басқару құқығына (мемлекеттік кәсіпкерлік) негізделген дербес, бастамашылық қызметі кәсіпкерлік
болып табылады. Кәсіпкерлік қызмет кәсіпкер атынан, оның тәуекел етуімен және мүліктік жауапкершілігімен жүзеге асырылады.
2. Мемлекет кәсiпкерлiк қызмет еркiндiгiне кепiлдiк бередi және оны қорғау мен қолдауды қамтамасыз етедi.
3. Заңдарда тыйым салынбаған қызметтi жүзеге асырушы кәсiпкерлердiң құқықтары:
1) кәсiпкерлiк қызметтi, "Рұқсаттар және хабарламалар туралы" Қазақстан Республикасының Заңында көзделген рұқсаттардан және хабарламалардан басқа, қандай да бір рұқсаттар алмай не хабарламаларды жібермей жүзеге асыру мүмкiндiгi арқылы;
2) экономиканың барлық салаларындағы кәсiпкерлiктiң барлық түрiн бiр ғана тiркеушi органда тiркеудiң барынша қарапайым өз бетiмен жүргiзетiн тәртiбiмен;
3) кәсiпкерлiк қызметке мемлекеттiк органдар жүргiзетiн тексерулердi заң құжаттарымен шектеу арқылы;
4) кәсiпкерлiк қызметтi заң құжаттарында көзделген негiз бойынша шығарылған сот шешiмi бойынша ғана ерiксiз тоқтату арқылы;
5) жеке кәсiпкерлiк үшiн тыйым салынған, экспорт немесе импорт үшiн тыйым салынған немесе шек қойылған жұмыс, тауарлардың түрлерi мен қызмет тiзбесiн заң құжаттарында белгiлеу арқылы;
6) мемлекеттiк органдарды, лауазымды адамдарды, сондай-ақ өзге де жақтар мен ұйымдарды кәсiпкерлердiң қызметiне заңсыз кедергi жасағаны үшiн олардың алдындағы заңдарда белгiленген мүлiктiк жауапкершiлiкке тарту арқылы;
6-1) атқарушы бақылау және қадағалау органдарына кәсiпкерлiк субъектiлерiмен осы органдардың функциялары болып табылатын мiндеттердi орындау мәнiнде шарттық қатынастарға кiруге тыйым салу арқылы;
7) заңдарда көзделген өзге де амалдармен қорғалады. 4. Рұқсат беру немесе хабарлама жасау тәртібін белгілеу адамдардың өмірі
мен денсаулығын, қоршаған ортаны, меншікті қорғау, ұлттық қауіпсіздікті және құқықтық тәртіпті қамтамасыз ету мақсатында қызметтің немесе әрекеттің ( операцияның) қауіптілік деңгейіне қарай "Рұқсаттар және хабарламалар туралы" Қазақстан Республикасының Заңымен жүргізіледі.
Егер Қазақстан Республикасының заңдарында көзделген өнімге қойылатын талаптар, сәйкестікті міндетті растау жөніндегі талаптар мемлекеттік реттеу мақсаттарына қол жеткізу үшін жеткіліксіз болған жағдайларда, рұқсат беру тәртібі белгіленеді.
5. Коммерциялық (кәсiпкерлiк) құпия заңмен қорғалады. Коммерциялық құпия болып табылатын мәлiметтердi анықтау тәртiбi, оның қорғау құралдары, сондай-ақ коммерциялық құпия құрамына енбейтiн мәлiметтер тiзбесi заңдарда белгiленедi.
6. Тұтынушылардың құқықтарын қорғау осы Кодексте немесе өзге де заң құжаттарында көзделген құралдармен қамтамасыз етiледi.
Әрбiр тұтынушының, атап айтқанда: - тауарлар сатып алу, жұмыс пен қызметтi пайдалану үшiн еркiн шарт
жасасуға; - тауарлардың (жұмыстың, қызметтiң) тиiсiнше сапалы және қауiпсiз болуына
; - тауарлар (жұмыс, қызмет) жөнiнде толық және анық мәлiмет алуға; - тұтынушылардың қоғамдық ұйымдарына бiрiгуге құқығы бар. Ескерту. 10-бапқа өзгерістер енгізілді - ҚР Президентiнiң 1996.01.27 N 2835
Жарлығымен, ҚР 1997.07.11 N 154, 1998.07.10 N 283, 2007.01.12 N 222 (ресми жарияланған күнінен бастап алты ай өткеннен кейін қолданысқа енгізіледі), 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 16.05.2014 № 203-V (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі); 29.10.2015 № 376-V (01.01.2016 бастап қолданысқа енгізіледі) Заңдарымен.
11-бап. Кәсiпкерлiк еркiндiгiн пайдаланып қиянат жасауға жол бермеу
1. Заңды бәсекелестiктi шектеуге немесе жоюға, негiзсiз артықшылықтар алуға, тұтынушылардың құқықтары мен заңды мүдделерiне қысым жасауға бағытталған монополистiк және қандай болса да басқа қызметке жол берiлмейдi.
2. Заң құжаттарында көзделген реттердi қоспағанда, кәсiпкерлердiң азаматтық құқықтарды бәсекелестiктi шектеу мақсатында пайдалануына, соның iшiнде:
1) кәсiпкерлердiң рыноктағы өздерiнiң үстем жағдайын пайдаланып, атап айтқанда, тауар тапшылығын жасау немесе бағаны көтеру үшiн тауар өндiрудi шектеу немесе тоқтатып тастау, не айналыстан алып тастау арқылы қиянат жасауына;
2) ұқсас кәсiпкерлiк қызмет жүргiзушi адамдардың баға, рыноктарды бөлiсу, басқа кәсiпкерлердi аластау туралы және бәсекелестiктi едәуiр шектейтiн өзге де жағдайлар туралы келiсiмдер жасасуына және оларды орындауына;
3) ұқсас кәсiпкерлiк қызмет жүргiзушi адамның және тұтынушылардың заңды мүдделерiне қысым көрсетуге бағытталған терiс пиғылды әрекеттер жасауына ( терiс пиғылды бәсекелестiк), атап айтқанда, тұтынушыларды басқа кәсiпкердiң тауар дайындаушысы, дайындау мақсаты, әдiсi мен орны, сапасы және өзге де
қасиеттерi жөнiнен шатастыру арқылы, тауарларды жарнамалық және өзге де ақпаратта әдепсiздiкпен салыстыру, бөтен тауардың сыртқы безендiрiлуiн көшiрiп алу арқылы және басқа да әдiстермен шатастыруына жол берiлмейдi.
Терiс пиғылды бәсекелестiкке қарсы күрес жөнiндегi шаралар заң құжаттарымен белгiленедi.
2-тарау. Азаматтық құқықтардың субъектілері Параграф 1. Қазақстан Республикасының азаматтары және басқа жеке тұлғалар
12-бап. Жеке тұлға ұғымы
Қазақстан Республикасының азаматтары, басқа мемлекеттердiң азаматтары, сондай-ақ азаматтығы жоқ адамдар жеке тұлғалар болып ұғынылады. Егер осы Кодексте басқаша белгiленбесе, бұл тараудың ережелерi барлық жеке тұлғаларға қолданылады.
13-бап. Азаматтардың құқық қабiлеттiлiгi
1. Азаматтық құқыққа ие болып, мiндет атқару қабiлетi (азаматтық құқық қабiлеттiлiгi) барлық азаматтарға бiрдей деп танылады.
2. Азаматтың құқық қабiлеттiлiгi ол туған кезден басталып қайтыс болған соң тоқтатылады.
14-бап. Азаматтың құқық қабiлеттiлiгiнiң негiзгi мазмұны
Азаматтың Қазақстан Республикасы шегiнде де, одан тыс жерлерде де мүлiктi , соның iшiнде шетел валютасын меншiктенуге; мүлiктi мұраға алып, мұраға қалдыруға; республика аумағында еркiн жүрiп-тұруға және тұрғылықты жер таңдауға; республикадан тыс жерлерге еркiн шығып кетуге және оның аумағына қайтып оралуға; заң құжаттарында тыйым салынбаған кез келген қызметпен айналысуға; дербес өзi немесе басқа азаматтармен және заңды тұлғалармен бiрiгiп заңды тұлғалар құру; заң құжаттарында тыйым салынбаған кез келген мәмiле жасасып, мiндеттемелерге қатысу; өнертабыстарға, ғылым, әдебиет және өнер шығармаларына, интеллектуалдық қызметтiң өзге де туындыларына интеллектуалдық меншiк құқығы болуға; материалдық және моральдық зиянның орнын толтыруды талап етуге құқығы болады; басқа да мүлiктiк және жеке мүліктік емес құқықтары болады.
Ескерту. 14-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
15-бап. Азаматтың есiмi
1. Азамат тегi мен есiмiн, сондай-ақ қалауы бойынша - әкесiнiң атын қоса отырып, өз атымен құқықтар мен мiндеттер алады және оларды жүзеге асырады.
2. Заңдар бойынша азаматтардың жасырын түрде құқықтар иеленiп, мiндеттердi жүзеге асыратын жағдайлары немесе бүркеншiк ат (ойдан шығарылған есiмдi) пайдаланатын реттерi көзделуi мүмкiн.
3. Азаматтың туған кезде берiлген есiмi, сондай-ақ есiмiн өзгерту азаматтық хал актiлерiн тiркеу туралы заңдарда белгiленген тәртiп бойынша тiркелуге тиiс.
4. Азамат өз есiмiн заң құжаттарында белгiленген тәртiп бойынша өзгертуге құқылы. Есiмiн өзгерту оның бұрынғы есiмiн, жасырын немесе бүркеншiк атпен алған құқықтары мен мiндеттерiн тоқтатуға немесе өзгертуге негiз болмайды.
5. Азамат өзiнiң борышқорлары мен несие берушiлерiне өз есiмiн өзгерткенi туралы хабарлау үшiн қажеттi шаралар қолдануға мiндеттi және бұл адамдарда оның есiмi өзгертiлгендiгi туралы мәлiметтер болмауынан туған ықтимал зардаптарға тәуекел етедi.
6. Есiмiн өзгерткен азамат өзiнiң бұрынғы есiмiне ресiмделген құжаттарға тиiстi өзгерiстер енгiзiлуiн талап етуге құқылы.
7. Басқа бiр адамның есiмiмен құқықтар мен мiндеттер иеленуге жол берiлмейдi.
8. Қазақстан Республикасының заңдарында көзделген жағдайлардан басқа, азамат өз есiмi оның келiсiмiнсiз пайдаланылған жағдайда, оған тыйым салынуын талап етуге құқылы.
9. Азаматтың есiмiн заңсыз пайдалану нәтижесiнде оған келтiрiлген зиян осы Кодекстiң ережелерiне сәйкес өтелуге тиiс.
Азаматтың есiмi оның абыройына, қадiр-қасиетiне және iскерлiк беделiне нұқсан келтiретiн әдiстермен немесе сондай нысанда бұрмаланған не пайдаланылған жағдайда осы Кодекстiң 143-бабында көзделген ережелер қолданылады.
Ескерту. 15-бапқа өзгерістер енгізілді - ҚР 2007.01.12 № 225; 21.05.2013 № 95 -V (алғашқы ресми жарияланғанынан кейiн алты ай өткен соң қолданысқа енгiзiледi) Заңдарымен.
16-бап. Азаматтың тұрғылықты жерi және заңды мекенжайы
1. Азамат тұрақты немесе көбiнесе тұратын елдi мекен оның тұрғылықты жерi деп танылады.
2. Он төрт жасқа толмаған адамдардың (жас балалардың) немесе қорғаншылықтағы азаматтардың тұрғылықты жерi олардың заңды өкілдерінің тұрғылықты жерi болып танылады.
3. Азаматтың жеке және заңды тұлғалармен, сондай-ақ мемлекетпен қарым-қатынастарында пайдаланатын заңды мекенжайы болады.
Азаматтың тiркелген жерi оның заңды мекенжайы болып танылады. Азаматтарды тiркеу тәртiбiн Қазақстан Республикасының Yкiметi
айқындайды. 4. Қазақстан Республикасының заңдарында көзделген жағдайлардан басқа,
азаматтың тұрғылықты жерi және заңды мекенжайы туралы ақпарат оның келiсiмiнсiз пайдаланылған жағдайда, оған тыйым салынуын талап етуге құқылы.
Ескерту. 16-бапқа өзгерістер енгізілді - ҚР 2007.01.12 № 224, 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 21.05.2013 № 95-V (алғашқы ресми жарияланғанынан кейiн алты ай өткен соң қолданысқа енгiзiледi) Заңдарымен.
17-бап. Азаматтардың әрекет қабiлеттiлiгi
1. Азаматтың өз әрекеттерiмен азаматтық құқықтарға ие болуға және оны жүзеге асыруға, өзi үшiн азаматтық мiндеттер жасап, оларды орындауға қабiлеттiлiгi (азаматтық әрекет қабiлеттiлiгi) кәмелетке толғанда, яғни он сегiз жасқа толғаннан кейiн толық көлемiнде пайда болады.
2. Заң құжаттарында он сегiз жасқа жеткенге дейiн некелесуге рұқсат етiлетiн жағдайда, он сегiз жасқа толмаған азамат некеге тұрған кезден бастап толық көлемiнде әрекет қабiлеттiлiгiне ие болады.
3. Егер заң құжаттарында өзгеше белгiленбесе, барлық азаматтардың әрекет қабiлеттiлiгi тең болады.
18-бап. Құқық қабiлеттiлiгi мен әрекет қабiлеттiлiгiнен айыруға және оларды шектеуге жол бермеу
1. Заң құжаттарында көзделген реттер мен тәртiп бойынша болмаса, ешкiмнiң де құқық қабiлеттiлiгi мен әрекет қабiлеттiлiгiн шектеуге болмайды.
2. Азаматтардың құқық қабiлеттiлiгi мен әрекет қабiлеттiлiгiн шектеудiң заң құжаттарында белгiленген шарттары мен тәртiбiнiң немесе олардың кәсiпкерлiк
не өзге де қызметпен айналысу құқығының сақталмауы тиiстi шектеудi белгiлеген мемлекеттiк немесе өзге де органның құжатын жарамсыз деп тануға әкелiп соқтырады.
3. Құқық қабiлеттiлiгiн немесе әрекет қабiлеттiлiгiн шектеуге бағытталған басқа да мәмiлелерге заңнамалық актілерде рұқсат берiлген жағдайларды қоспағанда, азаматтың құқық қабiлеттiлiгiнен немесе әрекет қабiлеттiлiгiнен толық немесе iшiнара бас тартуы және осындай мәмiлелер маңызсыз болады.
Ескерту. 18-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
19-бап. Азаматтардың кәсiпкерлiк қызметi
1. Азаматтар, осы Кодексте және өзге заң актiлерiнде көзделген жағдайларды қоспағанда заңды тұлға құрмай-ақ кәсiпкерлiк қызметпен айналысуға құқылы.
2. Дара кәсiпкерлердi мемлекеттiк тiркеу дара кәсiпкер ретiнде есепке қоюды білдіреді.
3. Азаматтардың заңды тұлға құрмай-ақ жүзеге асырылатын кәсiпкерлiк қызметiне, егер заңдардан немесе құқықтық қатынастар мәнiнен өзгеше нәрсе туындамайтын болса, тиiсiнше осы Кодекстiң коммерциялық ұйымдар болып табылатын заңды тұлғалардың қызметiн реттейтiн ережелерi қолданылады.
4. Жеке тұлғалар Қазақстан Республикасының Кәсіпкерлік кодексіне сәйкес дара кәсіпкер ретінде мемлекеттік тіркеуге жатады.
4-1. Алып тасталды - ҚР 25.12.2017 № 122-VI (01.01.2018 бастап қолданысқа енгізіледі) Заңымен.
5. Егер дара кәсіпкер лицензиялануға жататын қызметті жүзеге асырса, оның осындай қызметті жүзеге асыру құқығына лицензиясы болуы міндетті.
Лицензия Қазақстан Республикасының рұқсаттар және хабарламалар туралы заңнамасында белгіленген тәртіппен беріледі.
Қазақстан Республикасының Үкіметі дара кәсіпкерлерге лицензиялар берудің оңайлатылған тәртібін белгілеуге құқылы.
Ескерту. 19-бапқа өзгерістер енгізілді - ҚР 1997.07.02 № 144-I, 2001.12.24 № 276, 2008.12.10 № 101-IV (2009.01.01 бастап қолданысқа енгізіледі), 2010.06.30 № 297-IV (2013.01.01 бастап қолданысқа енгізіледі), 2012.12.26 № 61-V ( 2013.01.01 бастап қолданысқа енгізіледі); 16.05.2014 № 203-V (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі); 25.12.2017 № 122-VI (01.01.2018 бастап қолданысқа енгізіледі) Заңдарымен.
20-бап. Азаматтың мүлiктiк жауапкершiлiгi
1. Азамат өз мiндеттемелерi бойынша өзiне тиесiлi бүкiл мүлiкпен жауап бередi, бұған заң құжаттарына сәйкес ақы өндiрiп алуға болмайтын мүлiктер кiрмейдi.
2. Алып тасталды - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
Ескерту. 20-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
21-бап. Жеке кәсiпкердiң банкроттығы
1. Дара кәсiпкердiң дәрменсiздiгi (осы Кодекстiң 52-бабы) оны банкрот деп тануға негiз болып табылады.
2. Дара кәсіпкердің банкроттығы Қазақстан Республикасының оңалту және банкроттық туралы заңнамасында белгіленген қағидалар бойынша ерiктi немесе мәжбүрлi түрде танылады. Дара кәсiпкер банкрот деп танылған кезден бастап оны дара кәсiпкер ретiнде тiркеудiң күшi жойылады.
3. Дара кәсiпкерге банкроттық рәсiмдерiн қолданған кезде оның кәсiпкерлiк қызметпен байланысты емес мiндеттемелер бойынша кредиторлары, егер осындай мiндеттемелер бойынша орындау мерзiмi басталған болса, өз талаптарын қоюға да құқылы. Көрсетілген кредиторлардың осындай тәртiппен мәлiмделмеген талаптары, сондай-ақ мүліктік массадан толық көлемде қанағаттандырылмаған талаптар күшiн сақтап қалады және банкроттық рәсiмдері аяқталғаннан кейiн жеке тұлға ретiнде борышкерге өндiрiп алынуға қойылуы мүмкiн. Бұл талаптардың мөлшерi борышкердiң банкроттығы процесiнде алынған қанағаттандыру сомасына азайтылады.
Ескерту. 21-бап жаңа редакцияда - ҚР 07.03.2014 N 177-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
22-бап. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандардың әрекет қабiлеттiлiгi
1. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандар мәмiлелердi олардың заңды өкілдерінің келiсiмiмен жасайды. Мұндай келiсiмнiң нысаны заңдарда кәмелетке толмағандар жасайтын мәмiле үшiн белгiленген нысанға сай келуге тиiс.
2. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандар өздерiнiң табысына, стипендиясына, өзге де кiрiстерiне және өздерi жасаған
интеллектуалдық меншiк құқығы объектiлерiне өз бетiнше билiк етуге, сондай-ақ тұрмыстық ұсақ мәмiлелер жасасуға құқылы.
3. Жеткiлiктi негiздер болған жағдайда сот кәмелетке толмаған адамның өз табысына, стипендиясына, өзге де кiрiстерiне және өзi жасаған интеллектуалдық меншiк құқығы объектiлерiне өз бетiнше билiк ету құқығын шектеуi немесе ол құқықтан айыруы мүмкiн.
4. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандар осы баптың ережелерiне сәйкес өздерi жасаған мәмiлелер бойынша дербес жауапты болады және өздерiнiң әрекеттерiнен келтiрiлген зиян үшiн осы Кодекстiң ережелерi бойынша жауап бередi.
Ескерту. 22-бапқа өзгеріс енгізілді - ҚР 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 31.10.2015 № 378-V (01.01.2016 бастап қолданысқа енгізіледі) Заңымен.
22-1-бап. Кәмелетке толмаған адамды толығымен әрекетке қабiлеттi деп жариялау (эмансипация)
1. Жасы он алтыға жеткен кәмелетке толмаған адам, егер ол еңбек шарты бойынша жұмыс iстейтiн болса немесе оның заңды өкілдерінің келiсiмiмен кәсiпкерлiк қызметпен айналысатын болса, толығымен әрекетке қабiлеттi деп жариялануы мүмкiн.
2. Кәмелетке толмаған адамды толығымен әрекетке қабiлеттi деп жариялау ( эмансипация) оның заңды өкілдерінің келiсiмiмен қорғаншы және қамқоршы органның шешiмi бойынша не ондай келiсiм болмаған жағдайда соттың шешiмi бойынша жүргiзiледi.
3. Эмансипацияланған кәмелетке толмаған адам, Қазақстан Республикасының заңнамалық актiлерiне сәйкес ие болу үшiн жас шектеуi белгiленген құқықтар мен мiндеттердi қоспағанда, азаматтық құқықтарға ие болады және мiндеттердi ( оның iшiнде өзiнiң зиян келтiруi салдарынан туындаған мiндеттемелер бойынша) мойнына алады.
Заңды өкілдер эмансипацияланған кәмелетке толмаған адамның мiндеттемелерi бойынша жауапты болмайды.
Ескерту. Кодекс 21-1-баппен толықтырылды - ҚР 2007.01.12 № 225 Заңымен, өзгеріс енгізілді - ҚР 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
23-бап. Он төрт жасқа дейiнгi кәмелетке толмағандардың (жас балалардың) әрекет қабiлеттiлiгi
Ескерту. 23-баптың тақырыбына өзгеріс енгізілді - ҚР 2011.03.25 № 421-IV Заңымен (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1. Он төрт жасқа дейiнгi кәмелетке толмағандар (жас балалар) үшiн мәмiлелердi, егер заң құжаттарында өзгеше көзделмесе, олардың атынан заңды өкілдері жасайды.
2. Он төрт жасқа дейiнгi кәмелетке толмағандар (жас балалар) өздерiнiң жасына лайықты, жасай салып орындалатын тұрмыстық ұсақ мәмiлелердi өз бетiнше жасауға құқылы.
Ескерту. 23-бапқа өзгеріс енгізілді - ҚР 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
24-бап. Қорғаншылық және қамқоршылық органдарының кәмелетке толмағандардың мәмiле жасауына және кәмелетке толмағандар үшiн мәмiле жасауға келiсiмi
Заң құжаттарында кәмелетке толмағандардың мәмiле жасауына және кәмелетке толмағандар үшiн мәмiле жасауға қорғаншылық және қамқоршылық органының алдын ала келiсiмi талап етiлетiн жағдайлар белгiленуi мүмкiн.
25-бап. Кәмелетке толмағандардың банкiлерге салымдар салу және салымдарға билiк ету құқығы
1. Кәмелетке толмағандар банкiлерге салымдар салуға және өздерi салған салымдарға дербес билiк етуге құқылы.
2. Он төрт жасқа толмаған кәмелетке толмағандардың (жас балалардың) атына басқа бiреудiң салған салымдарына олардың ата-анасы немесе өзге де заңды өкiлдерi билiк етедi, ал он төрт жасқа толған кәмелетке толмағандар өздерiнiң атына басқа бiреу салған салымдарға өз бетiнше билiк етедi.
Ескерту. 25-бапқа өзгеріс енгізілді - ҚР 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
26-бап. Азаматты әрекет қабiлеттiлiгi жоқ деп тану
1. Жүйке ауруы немесе ақыл-есiнiң кемдiгi салдарынан өз әрекеттерiнiң мәнiн түсiне алмайтын немесе не iстегенiн бiлмейтiн азаматты сот әрекет қабiлеттiлiгi жоқ деп тануы мүмкiн, соған байланысты оған қорғаншылық белгiленедi.
2. Әрекет қабiлеттiлiгi жоқ деп танылған азаматтың атынан мәмiлелердi оның қорғаншысы жасайды.
3. Әрекет қабiлеттiлiгi жоқ адам сауығып кеткен немесе денсаулығы едәуiр жақсарған жағдайда сот оны әрекет қабiлеттiлiгi бар деп таниды, бұдан кейiн одан қорғаншылық алынады.
27-бап. Азаматтың әрекет қабiлеттiлiгiн шектеу
1. Спирт iшiмдiктерiне немесе есiрткi заттарға салыну салдарынан өзiнiң отбасын материалдық жағынан ауыр жағдайға ұшыратқан азаматтың әрекет қабiлеттiлiгiн сот Қазақстан Республикасының Азаматтық iс жүргiзу кодексiнде белгiленген тәртiп бойынша шектеуi мүмкiн. Оған қамқоршылық белгiленедi. Ол тұрмыстық ұсақ мәмiлелердi өз бетiнше жасауға құқылы. Басқа мәмiлелер жасауды, сондай-ақ табысын, зейнетақысын және өзге де кiрiстерiн алуды және оларға билiк етудi ол тек қамқоршысының келiсiмiмен ғана жүзеге асыра алады.
2. Азамат спирт iшiмдiктерiне немесе есiрткi заттарға және нашақорлыққа салынуды тоқтатқан жағдайда сот оның әрекет қабiлеттiлiгiне қойылған шектеудiң күшiн жояды. Сот шешiмiнiң негiзiнде азаматқа белгiленген қамқоршылықтың күшi жойылады.
28-бап. Азаматты хабар-ошарсыз кеттi деп тану
1. Егер азаматтың тұрғылықты жерiнде ол туралы бiр жыл бойы деректер болмаса, мүдделi адамдардың арызы бойынша сот оны хабар-ошарсыз кеттi деп тануы мүмкiн.
2. Хабар-ошарсыз кеткен азамат туралы соңғы деректер алынған күндi анықтау мүмкiн болмаған жағдайда жоқ адам туралы соңғы деректер алынған айдан кейiнгi айдың бiрiншi күнi, ал бұл айды анықтау мүмкiн болмаған жағдайда келесi жылғы бiрiншi қаңтар хабар-ошарсыз кетудiң басталған күнi деп есептеледi.
29-бап. Хабар-ошарсыз кеткен адамның мүлкiн сақтау
1. Хабар-ошарсыз кеттi деп танылған адамның мүлкiне сот шешiмiнiң негiзiнде қорғаншылық белгiленедi. Осы мүлiктен хабар-ошарсыз кеткен адам асырауға мiндеттi адамдарды асырауға қаражат берiледi және хабар-ошарсыз кеткен адамның салықтар мен басқа да мiндеттемелер бойынша берешегi өтеледi.
2. Мүдделi адамдардың арызы бойынша қорғаншылық және қамқоршылық органы мүлiктi сақтау және басқару үшiн хабар-ошарсыз кеткен адамның тұрған жерi туралы соңғы деректер алынған күннен бастап бiр жыл өткенге дейiн де қорғаншы тағайындай алады.
30-бап. Хабар-ошарсыз кеттi деп тану туралы шешiмнiң күшiн жою
Хабар-ошарсыз кеттi деп танылған адам келген немесе оның тұрған жерi белгiлi болған жағдайда сот оны хабар-ошарсыз кеттi деп тану туралы және оның мүлкiне қорғаншылық белгiлеу туралы шешiмнiң күшiн жояды.
31-бап. Азаматты өлдi деп жариялау
1. Егер азаматтың тұрғылықты жерiнде ол туралы үш жыл бойы деректер болмаса, ал егер ол өлiм қатерi төнген немесе жазатайым оқиғадан қаза тапты деп жорамалдауға негiз болатын жағдайларда алты ай бойы хабар-ошарсыз жоғалып кетсе, мүдделi адамдардың арызы бойынша сот оны өлдi деп жариялауы мүмкiн.
2. Соғыс қимылдарына байланысты хабар-ошарсыз жоғалып кеткен әскери қызметшi немесе өзге адам соғыс қимылдары аяқталған күннен бастап кемiнде екi жыл өткеннен кейiн өлдi деп жариялануы мүмкiн.
3. Өлдi деп жариялау туралы сот шешiмi заңды күшiне енген күні өлдi деп жарияланған адамның өлген күнi болып есептеледi. Өлiм қатерi төнген немесе жазатайым оқиғадан қаза тапты деп жорамалдауға негiз болатын жағдайларда хабар-ошарсыз жоғалып кеткен адам өлдi деп жарияланған реттерде сот бұл адамның шамамен қаза тапқан күнiн оның өлген күнi деп тануы мүмкiн.
4. Адамды өлдi деп жариялау туралы заңды күшiне енген сот шешiмiнiң негiзiнде азаматтық хал актiлерiн жазу кiтаптарына оның өлгенi туралы жазба жасалады. Бұл жазбаның нәтижелерi де нақты өлiм туралы жазбаның нәтижелерi сияқты болады.
32-бап. Өлдi деп жарияланған адамның тiрi оралуынан туындайтын жағдайлар
1. Өлдi деп жарияланған адам тiрi оралған немесе оның тұрған жерi белгiлi болған жағдайда сот тиiстi шешiмнiң күшiн жояды.
2. Азамат өзiнiң қай уақытта оралғанына қарамастан, кез келген адамнан азамат өлдi деп жарияланғаннан кейiн сол адамға тегiн көшiп, сақталып қалған мүлкiн қайтарып берудi талап ете алады.
3. Егер өлдi деп жарияланған адамның мүлкiн оның заңды мұрагерi үшiншi бiр адамдарға берiп, олар мүлiктiң сатып алу бағасын адам тiрi оралған кезге дейiн толық төлемеген болса, төленбеген соманы талап ету құқығы тiрi оралған адамға көшедi.
4. Өлдi деп жарияланған азаматтың мүлкi ақысы төленетiн мәмiле бойынша өзiне көшкен адамдар оған бұл мүлiктi қайтаруға, ал оларда мүлiк жоқ болған жағдайда, егер мүлiктi алған кезде олар өлдi деп жарияланған азаматтың тiрi екендiгiн бiлгенi дәлелденсе, мүлiктiң құнын өтеуге мiндеттi.
5. Мүлiктi иелiктен шығарушы адам өлдi деп жарияланған адамның мүлiктi иелiктен шығару кезiнде тiрi екендiгiн бiлген болса, мүлiктi қайтарып беру немесе оның құнын өтеу мiндетiн мүлiктi алушымен бiрге мойнына алады.
6. Егер өлдi деп жарияланған адамның мүлкi мұрагерлiк құқық бойынша мемлекетке өтiп, сатылып кеткен болса, адамды өлдi деп жариялау туралы шешiмнiң күшi жойылғаннан кейiн оған мүлiктiң құн төленетiн күнгi нарықтық бағасы ескерiле отырып, оны сатудан түскен сома қайтарылады.
Параграф 2. Заңды тұлғалар
Ескерту. III, IV, V бөлiктер V, VI, VII бөлiктер болып есептелдi - ҚР 1998.05.10 № 282 Заңымен.
I. Жалпы ережелер
33-бап. Заңды тұлға ұғымы
1. Меншiк, шаруашылық жүргiзу немесе жедел басқару құқығындағы оқшау мүлкi бар және сол мүлiкпен өз мiндеттемелерi бойынша жауап беретiн, өз атынан мүлiктiк және мүлiктiк емес жеке құқықтар мен мiндеттерге ие болып, оларды жүзеге асыра алатын, сотта талапкер және жауапкер бола алатын ұйым заңды тұлға деп танылады.
Заңды тұлғаның дербес балансы немесе сметасы болуға тиiс. 2. Заңды тұлғаның өз атауы жазылған мөрi болады. Осы Кодексте және
Қазақстан Республикасының заңдарында көзделген жағдайларды қоспағанда, бұл талап жеке кәсіпкерлік субъектілері болып табылатын заңды тұлғаларға қолданылмайды.
Ескерту. 33-бапқа өзгеріс енгізілді - ҚР 29.12.2014 № 269-V Заңымен ( 01.01.2015 бастап қолданысқа енгізіледі).
34-бап. Заңды тұлғалардың түрлерi мен нысандары
1. Өз қызметiнiң негiзгi мақсаты ретiнде табысын келтiрудi көздейтiн ( коммерциялық ұйым) не мұндай мақсат ретiнде пайда келтiре алмайтын және алынған таза табысын қатысушыларына үлестiрмейтiн (коммерциялық емес ұйым) ұйым заңды тұлға бола алады.
2. Коммерциялық ұйым болып табылатын заңды тұлға мемлекеттiк кәсiпорын , шаруашылық серiктестiк, акционерлiк қоғам, өндiрiстiк кооператив нысандарында ғана құрылуы мүмкiн.
3. Коммерциялық емес ұйым болып табылатын заңды тұлға мекеме, қоғамдық бірлестік, акционерлік қоғам, тұтыну кооперативі, қор, діни бірлестік нысанында және заңнамалық актілерде көзделген өзге де нысанда құрылуы мүмкін.
Коммерциялық емес ұйым кәсiпкерлiк қызметпен өзiнiң жарғылық мақсаттарына сай келуiне қарай ғана айналыса алады.
3-1. Коммерциялық емес ұйым болып табылатын және мемлекеттiк бюджеттiң есебiнен ғана ұсталатын заңды тұлға тек қана мемлекеттiк мекеме нысанында құрылуы мүмкiн.
4. Заңды тұлғалар бiрлестiк құра алады (осы Кодекстiң 110-бабы). 5. Заңды тұлға осы Кодекстiң, заңды тұлғалар нысандарының әрқайсысы
туралы Заңның, өзге де заң құжаттары мен құрылтай құжаттарының негiзiнде жұмыс iстейдi.
Ескерту. 34-бапқа өзгеріс енгізілді - ҚР 1997.07.11 № 154, 1998.03.02 № 211, 1998.07.10 № 282, 1998.12.16 № 320, 2007.01.12 № 225, 2012.04.27 № 15-V ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
35-бап. Заңды тұлғаның құқық қабiлеттiлiгi
1. Заңды тұлғаның азаматтық құқықтары болып, өз қызметiне байланысты мiндеттердi осы Кодекске сәйкес мойнына алуы мүмкiн. Мемлекеттiк кәсiпорындарды қоспағанда, коммерциялық ұйымдардың азаматтық құқықтары болуы және заң актiлерiнде немесе құрылтай құжаттарында тыйым салынбаған кез келген қызмет түрiн жүзеге асыру үшiн қажеттi азаматтық мiндеттердi атқаруы мүмкiн.
Заң актiлерiнде көзделген жағдайларда белгiлi бiр қызмет түрiн жүзеге асырушы заңды тұлғалар үшiн басқа қызметпен айналысу мүмкiндiгi болмауы немесе шектелуi мүмкiн.
Заңды тұлға тiзбесi заң актiлерiнде белгiленетiн жекелеген қызмет түрлерiмен лицензия негiзiнде ғана айналыса алады.
2. Заңды тұлғаның құқық қабiлеттiлiгi ол құрылған кезде пайда болады және оны тарату аяқталған кезде тоқтатылады. Айналысу үшiн рұқсат алу қажет болатын қызмет саласында заңды тұлғаның құқық қабiлеттiлiгi осындай рұқсатты алған кезден бастап пайда болады және ол алып қойылған, қолданыс мерзiмi өткен немесе Қазақстан Республикасының заңнамалық актілерінде белгiленген тәртiппен жарамсыз деп танылған кезде тоқтатылады.
3. Коммерциялық емес ұйым болып табылатын және мемлекеттiк бюджеттiң есебiнен ғана ұсталатын заңды тұлғаның (мемлекеттiк мекеме) құқық қабiлеттiлiгi осы Кодекспен және Қазақстан Республикасының өзге де заң актiлерiмен белгiленедi.
Ескерту. 35-бапқа өзгерістер енгізілді - ҚР 1998.03.02 № 211, 1998.12.16 № 320; 16.05.2014 № 203-V (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі) Заңдарымен.
36-бап. Құрылтайшылардың (қатысушылардың) өздерi құрған заңды тұлғалардың мүлкiне құқықтары
1. Заңды тұлғаның оқшау мүлкiне қатысты оның құрылтайшыларының ( қатысушыларының) мiндеттемелiк және заттық құқықтары болуы мүмкiн.
2. Мүлкiне өз қатысушылары (құрылтайшылары) мiндеттемелiк құқықтарын сақтап қалатын заңды тұлғаларға шаруашылық серiктестiктер, акционерлiк қоғам мен кооперативтер жатады.
3. Мүлкiне өз құрылтайшылары меншiк құқығын немесе өзге де заттық құқығын сақтап қалатын заңды тұлғаларға шаруашылық жүргiзушi құқығында немесе оралымды басқару құқығында мүлкi бар ұйымдар жатады.
4. Мүлкiне олардың құрылтайшылары (қатысушылары) мүлiктiк құқықтарын сақтамайтын заңды тұлғаларға қоғамдық бiрлестiктер, қорлар және дiни бiрлестiктер жатады.
5. Құрылтайшылардың (қатысушылардың) өздерi құрған өзге ұйымдық-құқықтық нысандардағы заңды тұлғалардың мүлкiне құқықтары Қазақстан Республикасының заңнамалық актiлерiнде айқындалады.
Ескерту. 36-бапқа өзгеріс енгізілді - ҚР 1998.07.10 № 282, 2007.01.12 № 225, 2012.04.27 № 15-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
37-бап. Заңды тұлғаның органдары
1. Заңды тұлға заң құжаттары мен құрылтай құжаттарына сәйкес жұмыс iстейтiн өз органдары арқылы ғана азаматтық құқықтарға ие болып, өзiне мiндеттер қабылдайды.
2. Заңды тұлға органдарының түрлерi, тағайындалу немесе сайлану тәртiбi және олардың өкiлеттiгi заңнамалық актілер мен құрылтай құжаттарында белгiленедi.
Ескерту. 37-бапқа өзгеріс енгізілді - ҚР 1998.03.02 № 211, 2011.03.25 № 421- IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
38-бап. Заңды тұлғаның атауы
1. Заңды тұлғаның оны басқа заңды тұлғалардан айыруға мүмкiндiк беретiн өз атауы болады.
Заңды тұлғаның атауы оның қалай аталатынын және ұйымдық-құқықтық нысанын көрсетудi қамтиды. Ол заңдарда көзделген қосымша мағлұматты қамтуы мүмкiн.
Заңды тұлғаның атауы оның құрылтай құжаттарында көрсетiледi. Заңды тұлғаның атауында заң талаптарына немесе қоғамдық мораль
қалыптарына қайшы келетiн аттарды, егер жеке адамдардың есiмдерi қатысушылардың есiмдерiне сәйкес келмесе не қатысушылар бұл адамдардың есiмiн пайдалануға олардан (олардың мұрагерлерiнен) рұқсат алмаса, олардың есiмдерiн пайдалануға жол берiлмейдi.
2. Заңды тұлға белгілі бір атаумен Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiне енгізіледі.
Заңды тұлғаның атауы Қазақстан Республикасында тіркелген заңды тұлғалардың атауын толық немесе оның елеулі бөлігінде қайталамауға тиіс.
Коммерциялық ұйым болып табылатын заңды тұлғаның атауы заңды тұлға тіркелгеннен кейін оның фирмалық атауы болып табылады.
Заңды тұлғаның фирмалық атауды тек қана өзі пайдалануға құқығы бар. Бөтен бір фирмалық атауды заңсыз пайдаланатын тұлға фирмалық атаудың құқық иесінің талап етуі бойынша мұндай атауды пайдалануды тоқтатуға және келтірілген залалдың орнын толтыруға міндетті.
Заңды тұлғаның фирмалық атауды пайдалануға байланысты құқықтары мен міндеттері заңнамада айқындалады.
3. Алынып тасталды - ҚР 2001.12.24 № 276 Заңымен. 4. Мемлекеттiк органдар болып табылмайтын заңды тұлғалардың фирмалық
атауларында, қызмет көрсету таңбаларында, тауар таңбаларында, Қазақстан
Республикасының заң актілерiнде, Президентi мен Үкiметi актiлерiнде белгiленген Қазақстан Республикасы мемлекеттiк органдарының ресми атауларына сiлтемелердi пайдалануға тыйым салынады.
Ескерту. 38-бапқа өзгеріс енгізілді - ҚР 1996.07.15 № 30, 1998.03.02 № 211, 1999.07.16 № 440, 2001.12.24 № 276, 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.12.24 № 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңдарымен.
39-бап. Заңды тұлғаның тұрған жерi
1. Заңды тұлғаның тұрақты жұмыс iстейтiн органы тұрған жер оның тұрған жерi болып танылады.
2. Заңды тұлғаның тұрған жерi оның құрылтай құжаттарында почталық толық мекен-жайы жазылып, көрсетiледi.
3. Үшiншi тұлғалармен қарым-қатынастарда заңды тұлға нақты мекенжайының Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiміне енгiзiлген мекенжайына сәйкес келмейтiнiне сiлтеме жасауға құқылы емес. Бұл ретте, үшiншi тұлғалар заңды тұлғаға почталық және өзге де хат-хабарды Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiне енгiзiлген мекенжайына да, нақты мекенжайына да жіберуге құқылы.
Ескерту. 39-бапқа өзгеріс енгізілді - ҚР 1998.03.02 № 211, 2012.12.24 № 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңдарымен.
40-бап. Заңды тұлғаның құрылтайшылары
1. Заңды тұлғаны бiр немесе бiрнеше құрылтайшы құруы мүмкiн. 2. Мүлiктi меншiктенушiлер не олар уәкiлдiк берген органдар немесе жақтар,
ал заң құжаттарында арнайы көзделген реттерде өзге де заңды тұлғалар заңды тұлғаның құрылтайшылары бола алады. Бұл орайда, мүлiктi шаруашылық жүргiзу немесе оралымды басқару құқығымен иеленетiн заңды тұлғалар, егер Қазақстан Республикасының заңдарында өзгеше көзделмесе, меншiк иесiнiң немесе ол уәкiлдiк берген органның келiсiмiмен басқа заңды тұлғалардың құрылтайшылары бола алады.
3. Заңды тұлғаның құрылтайшылары, Қазақстан Республикасының заң актiлерiнде көзделген жағдайларды қоспағанда, осы заңды тұлғаның
құрылтайшылары болып табылмайтын оның басқа қатысушыларынан қандай да бiр артықшылықтарға ие бола алмайды.
Ескерту. 40-бапқа өзгеріс енгізілді - ҚР 2003.05.16 № 416, 2011.02.18 № 408- IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
41-бап. Заңды тұлғаның құрылтай құжаттары
1. Егер осы Кодексте және Қазақстан Республикасының заңнамалық актiлерiнде өзгеше көзделмесе, заңды тұлға өз қызметiн:
1) жарғысы және құрылтай шарты; 2) жарғысы;
3) жарғысы және eгep заңды тұлғаны бiр адам құрған жағдайда, заңды тұлғаны құру туралы жазбаша түрде ресiмделген шешiмi (жалғыз құрылтайшының шешiмi) негiзiнде жүзеге асырады.
Қазақстан Республикасының заңнамалық актiлерiнде көзделген жағдайларда, коммерциялық емес ұйым болып табылатын заңды тұлға осы түрдегі ұйымдар туралы жалпы ережелер негiзiнде әрекет жасай алады.
Шағын, орта және ірі кәсiпкерлiк субъектiсi болып табылатын заңды тұлға мазмұнын Қазақстан Республикасының Әділет министрлігі айқындайтын үлгiлік жарғының негiзiнде өз қызметiн жүзеге асыра алады.
2. Заңды тұлғаның құрылтай шарты жасалады, ал жарғысын құрылтайшылары бекiтедi. Егер коммерциялық ұйымның құрылтайшысы бiр адам болса, құрылтай шарты жасалмайды.
3. Коммерциялық емес ұйым мен мемлекеттiк кәсiпорынның құрылтай құжаттарында заңды тұлға қызметiнiң мәнi мен мақсаты белгiленуге тиiс.
Шаруашылық серiктестiгi, акционерлiк қоғамы мен өндiрiстiк кооперативтiң құрылтай құжаттарында олардың қызметiнiң мәнi мен мақсаттары көзделуi мүмкiн.
4. Құрылтай шартында тараптар (құрылтайшылар) заңды тұлға құруға мiндеттенедi, оны құру жөнiндегi бiрлескен қызмет тәртiбiн, оның меншiгiне ( оралымды басқаруына) өз мүлкiн беру және оның қызметiне қатысу ережелерiн белгiлейдi. Егер осы Кодексте немесе заңды тұлғалардың жекелеген түрлерi туралы заң актiлерiнде өзгеше көзделмесе, шартта құрылтайшылар арасында таза табысты бөлудiң, заңды тұлға қызметiн басқарудың, оның құрамынан құрылтайшылардың шығуының шарттары мен тәртiбi де белгiленедi және оның жарғысы бекiтiледi.
Құрылтай шартына құрылтайшылардың келiсуi бойынша басқа да ережелер енгiзiлуi мүмкiн.
4-1. Жалғыз құрылтайшының шешiмi мүлiктердi меншiкке беру ( шаруашылық жүргiзу, оралымды басқару) шарттарын және Қазақстан Республикасының заңнамасына қайшы келмейтiн өзге де шешiмдердi қамтуға тиiс.
Жалғыз құрылтайшының - заңды тұлғаның шешiмiн Қазақстан Республикасының заңнамасына және осы заңды тұлғаның жарғысына сәйкес оның осындай шешiм қабылдауға құқығы бар органдары қабылдайды.
5. Заңды тұлғаның жарғысында: онда оның атауы, тұрғылықты орны, оның органдарын құру тәртiбi және олардың құзыретi, оның қызметiн қайта құру және жою ережелерi белгiленедi.
Егер заңды тұлғаны бiр адам құрса, онда оның жарғысында мүлiктi құру және кiрiстердi бөлу тәртiбi де белгiленедi.
Жарғыда Қазақстан Республикасының заңдарына қайшы келмейтiн басқа да ережелер болуы мүмкiн.
6. Бiр заңды тұлғаның құрылтай шарты мен жарғысы арасында қайшылықтар болған жағдайда:
1) егер олар құрылтайшылардың өзара қатынастарына қатысты болса, құрылтай шартының;
2) егер олардың қолданылуы заңды тұлғаның үшiншi тұлғалармен қатынастарында маңызы болса, жарғының ережелерi қолдануға тиiс.
7. Барлық мүдделi адамдар заңды тұлғаның жарғысымен танысуға құқылы. Ескерту. 41-бапқа өзгеріс енгізілді - ҚР 1996.07.15 № 30, 1997.06.19 № 132,
1997.07.11 № 154, 1998.03.02 № 211, 1998.04.22 № 221, 1998.07.10 № 282, 2003.05.16 № 416, 2007.01.12 № 225, 2008.07.04 № 54-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2009.12.08 № 225-IV (қолданысқа енгізілу тәртібін 2- б. қараңыз), 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
42-бап. Заңды тұлғаларды мемлекеттiк тiркеу және қайта тiркеу
1. Коммерциялық емес ұйым болып табылатын заңды тұлға әдiлет органдарында мемлекеттiк тiркелуге жатады.
Қазақстан Республикасының заңнамалық актiлерiнде көзделген жағдайларды қоспағанда, коммерциялық ұйым болып табылатын заңды тұлға "Азаматтарға арналған үкімет" мемлекеттік корпорациясында мемлекеттік тіркелуге жатады.
Мемлекеттiк тiркеу тәртiбi Қазақстан Республикасының заңнамасында айқындалады.
2. Мемлекеттiк тiркеу деректері, оның iшiнде заңды тұлғалардың атауы, ал коммерциялық ұйымдар үшін – фирмалық атауы Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiне енгiзiледi.
3. Заңды тұлға мемлекеттiк тiркеуден өткен кезден бастап құрылды деп саналады.
4. Филиалдар мен өкiлдiктер заң құжаттарында белгiленген тәртiппен тiркеледi.
Филиалдар мен өкiлдiктер атаулары өзгерген жағдайда қайта тiркелуге жатады.
5. Заңды тұлға құрудың заңда белгiленген тәртiбiн бұзу немесе оның құрылтай құжаттарының заңға сәйкес келмеуi заңды тұлғаның мемлекеттiк тiркеуден бас тартуға әкелiп соқтырады. Заңды тұлға құрудың тиiмсiздiгiн желеу етiп тiркеуден бас тартуға жол берiлмейдi.
Мемлекеттiк тiркеуден бас тартқаны, сондай-ақ мұндай тiркеуден жалтарғаны үшiн сотқа шағым берiлуi мүмкiн.
6. Заңды тұлға мынадай жағдайларда: 1) жарғылық капиталының мөлшерi азайтылған; 2) атауы өзгергенде; 3) шаруашылық серiктестiктерiндегi қатысушылардың құрамы өзгергенде (
шаруашылық серiктестiгi қатысушыларының тiзiлiмiн жүргiзудi бағалы қағаздарды ұстаушылар тiзiлiмдерiнiң жүйесiн жүргiзу жөнiндегі қызметтi жүзеге асыратын бағалы қағаздар рыногының кәсiби қатысушысы жүзеге асыратын шаруашылық серiктестiктерiн қоспағанда) қайта тiркелуге тиiс.
Аталған негiздер бойынша құрылтай құжаттарына енгiзiлген өзгерiстер заңды тұлға қайта тiркелмейiнше жарамсыз болып табылады.
Ескерту. 42-бапқа өзгеріс енгізілді - ҚР 1996.07.15 N 30-I, 1997.07.11 N 154, 1998.03.02 N 211, 1998.07.10 N 282, 2003.05.16 N 416, 2005.07.08 N 72( қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2006.06.05 N 146, 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2011.12.28 N 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.12.24 N 60-V ( алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 02.04.2019 № 241-VI (01.07.2019 бастап қолданысқа енгізіледі) Заңдарымен. 43-бап. Заңды тұлғаның филиалдары, өкілдіктері және өзге де оқшауланған құрылымдық бөлімшелері
1. Заңды тұлғаның тұрған жерiнен тыс орналасқан және оның функцияларының бәрiн немесе бiр бөлiгiн, оның iшiнде өкiлдiк функцияларын жүзеге асыратын оқшауланған бөлiмшесi оның филиалы болып табылады.
2. Заңды тұлғаның тұрған жерiнен тыс орналасқан және заңды тұлғаның мүдделерiн қорғауды және өкілдік етуді жүзеге асыратын, Қазақстан Республикасының заңнамалық актiлерiнде көзделген жағдайларды қоспағанда, оның атынан мәмiлелер мен өзге де құқықтық әрекеттер жасайтын оқшауланған бөлiмшесi оның өкiлдiгі болып табылады.
3. Филиалдар мен өкiлдiктер заңды тұлғалар болып табылмайды. Оларға өздерiн құрған заңды тұлға мүлік бөліп береді және олар оның бекiткен ережелері негiзiнде әрекет етеді.
4. Заңдарда белгіленген жағдайларды қоспағанда, заңды тұлғалар өзге де оқшауланған құрылымдық бөлімшелер құруға құқылы.
Заңды тұлғаның функцияларының бір бөлігін орындайтын, өзінің орналасқан жері бойынша стационарлық жұмыс орындары жабдықталған аумақтық оқшауланған бөлімше заңды тұлғаның өзге де оқшауланған құрылымдық бөлімшесі болып танылады. Егер жұмыс орны бір айдан асатын мерзімге құрылса, ол стационарлық жұмыс орны болып есептеледі.
Мемлекеттік мекеменің өзге де оқшауланған құрылымдық бөлімшесі заңдарда тікелей көзделген жағдайларда құрылады.
5. Қоғамдық бiрлестiктердiң құрылымдық бөлiмшелерiнiң (филиалдары мен өкiлдiктерiнiң) басшылары қоғамдық бiрлестiктiң жарғысында және оның филиалы немесе өкiлдiгi туралы ережеде көзделген тәртiппен сайланады.
Дiни бiрлестiктердiң құрылымдық бөлiмшелерiнiң (филиалдары мен өкiлдiктерiнiң) басшылары дiни бiрлестiктiң жарғысында және оның филиалы немесе өкiлдiгi туралы ережеде көзделген тәртiппен сайланады не тағайындалады.
Өзге нысандағы заңды тұлғалардың филиалдары мен өкiлдiктерiнiң басшыларын заңды тұлғаның уәкiлетті органы тағайындайды және олар оның сенiмхаты негiзiнде әрекет етеді.
Ескерту. 43-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
44-бап. Заңды тұлғаның жауапкершiлiгi
1. Мекемелердің және қазыналық кәсiпорындардың құрылтайшысы қаржыландыратын арнайы қаржы компанияларынан, мемлекеттік ислам арнайы қаржы компанияларынан басқа заңды тұлғалар өз мiндеттемелерi бойынша өздерiне тиесiлi барлық мүлiкпен жауап бередi.
Мекеме өзінің мiндеттемелері бойынша өз билiгiндегi ақшамен жауап бередi. Ақша жеткiлiксiз болған жағдайда мекеменiң мiндеттемелерi бойынша оның құрылтайшысы жауаптылықта болады.
Қазыналық кәсiпорын өзiнiң мiндеттемелерi бойынша өз билiгiндегi ақшамен жауап бередi.
Қазыналық кәсiпорында ақша жеткiлiксiз болған жағдайда оның мiндеттемелерi бойынша Қазақстан Республикасы немесе әкiмшiлiк-аумақтық бөлініс тиiстi бюджет қаражатымен субсидиарлық жауаптылықта болады.
Арнайы қаржы компаниясы өз міндеттемелері бойынша Қазақстан Республикасының жобалық қаржыландыру және секьюритилендіру туралы заңнамасында көзделген тәртіппен жауап береді.
Мемлекеттік ислам арнайы қаржы компаниясы міндеттемелері бойынша өз иелігіндегі ақшасымен жауап береді.
2. Заңды тұлғаның құрылтайшысы (қатысушысы) немесе оның мүлкiнiң меншiк иесi оның мiндеттемелерi бойынша жауап бермейдi, ал заңды тұлға заңды тұлғаның құрылтайшысының (қатысушысының) немесе оның мүлкiнiң меншiк иесiнiң мiндеттемелерi бойынша жауап бермейдi, бұған осы Кодексте, өзге заң актiлерiнде не заңды тұлғаның құрылтай құжаттарында көзделген жағдайлар қосылмайды.
3. Егер заңды тұлғаның әдейі банкроттығы оның құрылтайшысының ( қатысушысының) және (немесе) лауазымды адамның әрекеттерiнен ( әрекетсіздігінен) туындаған болса, онда заңды тұлғаның қаражаты жеткiлiксiз болған жағдайда құрылтайшы (қатысушы) және (немесе) лауазымды адам кредиторлар алдында субсидиярлық жауаптылықта болады.
Егер заңды тұлғаның жалған банкроттығы оның құрылтайшысының ( қатысушысының) және (немесе) лауазымды адамның әрекеттерiнен ( әрекетсіздігінен) туындаған болса, онда заңды тұлғаның қаражаты жеткiлiксiз болған жағдайда құрылтайшы (қатысушы) және (немесе) лауазымды адам жалған банкроттық нәтижесінде кредиторға келтірілген залал үшін субсидиарлық жауаптылықта болады.
4. Заңды тұлға үшiншi тұлғалардың алдында заңды тұлғаның органы құрылтай құжаттарында белгiленген өз өкiлеттiгiн асыра пайдаланып қабылдаған мiндеттемелерi бойынша жауап бередi, бұған осы Кодекстiң 159-бабының 11- тармағында көзделген жағдайлар қосылмайды.
Ескерту. 44-бапқа өзгерістер енгізілді - ҚР 1997.07.11 N 154, 1998.03.02 N 211 , 1998.12.16 N 320, 1999.11.04 N 472, 2003.05.20 N 417, 2006.02.20 N 127 ( қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12 N 225, 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі), 2012.01.12 N 539-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн
өткен соң қолданысқа енгiзiледi); 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
45-бап. Заңды тұлғаны қайта құру
1. Заңды тұлғаны қайта ұйымдастыру (бiрiктiру, қосу, бөлу, бөлiп шығару, қайта құру) оның мүлкiнің меншiк иесінің немесе меншiк иесi уәкiлеттiк берген органның, құрылтайшылардың (қатысушылардың), сондай-ақ заңды тұлғаның құрылтай құжаттарында уәкiлеттiк берiлген органның шешiмi бойынша не Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайларда сот органдарының шешiмi бойынша жүргiзiледi. Қазақстан Республикасының заңнамасында қайта ұйымдастырудың басқа да нысандары көзделуi мүмкiн.
Заңды тұлға – ерікті жинақтаушы зейнетақы қорын, сақтандыру (қайта сақтандыру) ұйымын, Сақтандыру төлемдеріне кепілдік беру қорын, арнайы қаржы компаниясын, төлем ұйымын қайта ұйымдастыру Қазақстан Республикасының зейнетақымен қамсыздандыру, сақтандыру және сақтандыру қызметі, Сақтандыру төлемдеріне кепілдік беру қоры, жобалық қаржыландыру және секьюритилендіру, төлемдер және төлем жүйелері туралы заңнамасында көзделген ерекшеліктер ескерiле отырып жүзеге асырылады.
Акционерлiк қоғамдарды қайта ұйымдастыру Қазақстан Республикасының акционерлiк қоғамдар туралы заң актiсiнде белгiленген ерекшелiктер ескерiле отырып жүзеге асырылады.
2. Қайта құру ерiктi түрде немесе ықтиярсыз жүргiзiлуi мүмкiн. 3. Заң құжаттарында көзделген реттерде ықтиярсыз қайта құру сот
органдарының шешiмi бойынша жүзеге асырылуы мүмкiн. Егер заңды тұлғаның мүлкiн меншiктенушi, ол уәкiлдiк берген орган,
құрылтайшылар немесе заңды тұлғаның құрылтай құжаттарында қайта құруға уәкiлдiк берiлген органы заңды тұлғаны қайта құруды сот органының шешiмiнде белгiленген мерзiмде жүзеге асырмаса, сот заңды тұлғаның басқарушысын тағайындайды және оған осы заңды тұлғаны қайта құруды жүзеге асыруды тапсырады. Басқарушы тағайындалған кезден бастап заңды тұлғаның iсiн басқару жөнiндегi өкiлеттiк соған ауысады. Басқарушы сотта заңды тұлғаның атынан әрекет етедi, бөлу балансын жасайды және оны заңды тұлғаны қайта құру нәтижесiнде туындайтын құрылтай құжаттарымен бiрге соттың бекiтуiне бередi. Аталған құжаттарды соттың бекiтуi жаңадан пайда болған заңды тұлғаларды мемлекеттiк тiркеу үшiн негiз болады.
4. Заңды тұлға, бiрiктiру нысанында қайта құрылатын реттердi қоспағанда, жаңадан пайда болған заңды тұлғалар тiркелген кезден бастап қайта құрылған деп есептеледi.
Заңды тұлға оған екiншi бір заңды тұлғаның қосылуы жолымен қайта ұйымдастырылған кезде қосылған заңды тұлға қызметiнiң тоқтатылғаны туралы мәліметтер Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiне енгізілген кезден бастап олардың бiрiншiсi қайта ұйымдастырылды деп есептеледі.
Ескерту. 45-бапқа өзгеріс енгізілді - 1997.06.19 N 134-I, 2000.12.18 N 128, 2005.07.08 N 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2006.02.20 N 127 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2009.12.30 № 234-IV ( қолданысқа енгізілу тәртібін 2-б. қараңыз), 2012.01.12 N 539-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi), 2012.12.24 N 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi), 21.06.2013 N 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 26.07.2016 № 12-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік отыз күн өткен соң қолданысқа енгізіледі) Заңдарымен.
46-бап. Заңды тұлғаларды қайта құрған кездегi құқықты мирасқорлығы
1. Заңды тұлғаларды қосқан кезде олардың әрқайсысының құқықтары мен мiндеттерi өткiзу құжатына сәйкес жаңадан пайда болған заңды тұлғаға ауысады.
2. Заңды тұлғаны екiншi бiр заңды тұлғаға бiрiктiрген кезде бiрiктiрiлген заңды тұлғаның құқықтары мен мiндеттерi өткiзу құжатына сәйкес соңғысына ауысады.
3. Заңды тұлғаны бөлген кезде оның құқықтары мен мiндеттерi бөлу балансына сәйкес жаңадан пайда болған заңды тұлғаларға ауысады.
4. Заңды тұлғаның құрамынан бiр немесе бiрнеше заңды тұлғаларды бөлiп шығарғанда, бөлу балансына сәйкес олардың әрқайсысына қайта құрылған заңды тұлғаның құқықтары мен мiндеттерi ауысады.
5. Заңды тұлғаның бiр түрiн екiншi түрдегi заңды тұлғаға өзгерткен кезде ( ұйымдық-құқықтық нысанды өзгерткенде) қайта құрылған заңды тұлғаның құқықтары мен мiндеттерi өткiзу құжатына сәйкес жаңадан пайда болған заңды тұлғаға ауысады.
47-бап. Өткiзу актiсi және бөлу балансы
1. Қайта құрылған заңды тұлғаның мүлiктiк құқықтары мен мiндеттерi жаңадан пайда болған заңды тұлғаға қосылған немесе бiрiктiрiлген кезде - өткiзу
актiсiне сәйкес, бөлiнген және бөлiп шығарылған жағдайда - бөлу балансына сәйкес ауысады.
Өткiзу актiсi мен айыру балансында қайта құрылған заңды тұлғаның барлық несие берушiлерi мен борышқорларына қатысты, барлық мiндеттемелерi бойынша, соның iшiнде тараптар дауласқан мiндеттемелер бойынша да құқықты мирасқорлығы туралы ережелер болуға тиiс.
2. Өткiзу актiсi мен бөлу балансын заңды тұлғаның мүлкiн меншiктенушi немесе заңды тұлғаны қайта құру туралы шешiм қабылдаған орган бекiтедi және құрылтай құжаттарымен бiрге жаңадан пайда болған заңды тұлғаларды тiркеуге немесе нақтылы бар заңды тұлғалардың құрылтай құжаттарына өзгерiстер енгiзу үшiн олар құрылтай құжаттарымен бiрге тапсырылады.
Құрылтай құжаттарымен бiрге тиiстi өткiзу актiсiнiң немесе бөлу балансының тапсырылмауы, сондай-ақ оларда қайта құрылған заңды тұлғаның мiндеттемелерi бойынша құқықты мирасқорлығы туралы ережелердiң болмауы жаңадан пайда болған заңды тұлғаларды мемлекеттiк тiркеуден бас тартуға әкелiп соқтырады.
3. Егер заң құжаттарында немесе қайта құру туралы шешiмде өзгеше көзделмесе, мүлiк (құқықтар мен мiндеттер) құқықты мирасқорына ол тiркелген кезден бастап ауысады.
48-бап. Заңды тұлғаны қайта құру кезiндегi оның несие берушiлерi құқықтарының кепiлдiгi
1. Заңды тұлға мүлкiнің меншік иесі немесе заңды тұлғаны қайта ұйымдастыру туралы шешiм қабылдаған орган қайта ұйымдастырылатын заңды тұлғаның кредиторларын бұл жөнінде жазбаша хабардар етуге мiндеттi. Талаптарды мәлімдеу мерзімі қайта ұйымдастырылатын заңды тұлғаның кредиторлары хабарламаларды алған кезден бастап екі айдан кем болмауға тиіс.
2. Бөлiнген және бөлiп шығарылған кезде құрылатын заңды тұлғаның несие берушiсi осы заңды тұлға борышқоры болып табылатын мiндеттемелердiң мерзiмiнен бұрын тоқтатылуын және келтiрiлген залалдың орны толтырылуын талап етуге құқылы.
3. Егер бөлу балансы қайта құрылған заңды тұлғаның құқықты мирасқорын анықтауға мүмкiндiк бермесе, не егер құқықтық мирасқорында қайта құрылғанға дейін туындаған міндеттемелерді орындау үшін мүлік жеткіліксіз болса, жаңадан пайда болған заңды тұлғалар, сондай-ақ құрамынан басқа заңды тұлға бөлiнiп шыққан заңды тұлға, қайта құрылған заңды тұлғаның мiндеттемелерi бойынша оның несие берушiлерiнiң алдында ортақ жауапты болады.
Ескерту. 48-бапқа өзгеріс енгізілді - ҚР 1998.03.02 № 211, 2010.04.02 № 262- IV (2010.10.21 бастап қолданысқа енгізіледі), 2012.12.24 № 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңдарымен.
49-бап. Заңды тұлғаны тарату негiздерi
1. Заңды тұлға мүлкiнің меншiк иесінің немесе меншiк иесi уәкiлеттiк берген органның, сондай-ақ құрылтай құжаттарында осыған уәкiлеттiк берiлген органының шешiмi бойынша заңды тұлға кез келген негiз бойынша таратылуы мүмкiн.
Заңды тұлға – ерікті жинақтаушы зейнетақы қорын, сақтандыру (қайта сақтандыру) ұйымын, Сақтандыру төлемдеріне кепілдік беру қорын, арнайы қаржы компаниясын, мақта өңдеу ұйымын тарату Қазақстан Республикасының зейнетақымен қамсыздандыру, сақтандыру ісі және сақтандыру қызметі, Сақтандыру төлемдеріне кепілдік беру қоры, жобалық қаржыландыру және секьюритилендіру, мақта саласын дамыту туралы заңнамасында көзделген ерекшелiктер ескерiле отырып жүзеге асырылады.
2. Соттың шешiмi бойынша заңды тұлға: 1) банкрот болған;
2) заңды тұлғаны құру кезiнде заңдардың түзетуге келмейтiн сипатта бұзылуына жол берiлуiне байланысты оны тiркеу жарамсыз деп танылған;
3) орналасқан жері бойынша немесе нақты мекенжайы бойынша заңды тұлға, сондай-ақ заңды тұлға бір жыл ішінде оларсыз жұмыс істей алмайтын құрылтайшылар (қатысушылар) және лауазымды адамдар болмаған;
4) қызметін заңнаманы өрескел бұза отырып жүзеге асырған: заңды тұлғаның жарғылық мақсаттарына қайшы келетін қызметті үнемі
жүзеге асырған; қызметін тиісті лицензиясыз не заңнамалық актілерде тыйым салынған
қызметті жүзеге асырған; 5) басқа да заңнамалық актілерде көзделген жағдайларда таратылуы мүмкін.
3. Осы баптың екiншi тармағындағы аталған негiздер бойынша заңды тұлғаны тарату туралы талапты заң актiлерiнде осындай талап қоюға құқық берiлген мемлекеттiк орган, ал банкрот болған жағдайда - несие берушiлер де сотқа беруi мүмкiн.
Заңды тұлғаны тарату туралы сот шешiмiмен заңды тұлғаны таратуды жүзеге асыру жөнiндегi мiндеттер оның мүлкiн меншiктенушiге, меншiк иесi уәкiлдiк берген органға, заңды тұлғаны таратуға оның құрылтай құжаттарында уәкiлдiк берiлген органға, не сот тағайындаған басқа органға (тұлғаға) жүктелуi мүмкiн.
4. Егер осы баптың 1-тармағында белгiленген тәртiппен оны тарату туралы шешiм қабылданған заңды тұлға мүлкiнiң құны кредиторлардың талаптарын қанағаттандыру үшiн жеткiлiксiз болса, мұндай заңды тұлға Қазақстан Республикасының оңалту және банкроттық туралы заңнамалық актісінде белгiленген тәртiппен таратылуға тиіс.
5. Заңды тұлғалардың жекелеген түрлерi мемлекет уәкiлдiк берген тиiстi органның шешiмiмен заң актiлерiнде көзделген негiздер бойынша таратылуы мүмкiн.
Ескерту. 49-бапқа өзгерістер енгізілді - ҚР 1997.01.21 № 68-I, 1997.06.19 № 134-I, 1998.03.02 № 211, 2000.12.18 № 128, 2001.12.24 № 276 (2002.01.01 бастап қолданысқа енгізіледі), 2006.02.20 № 127 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12 № 225, 2007.07.21 № 299, 2009.12.30 № 234-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.01.12 № 539-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi), 21.06.2013 № 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 № 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 16.05.2014 № 203-V (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі) Заңдарымен .
50-бап. Заңды тұлғаны тарату тәртiбi
1. Заңды тұлға мүлкiнің меншiк иесі немесе заңды тұлғаны тарату туралы шешiм қабылдаған орган бұл туралы заңды тұлғаларды тiркеудi жүзеге асыратын әдiлет органына не "Азаматтарға арналған үкімет" мемлекеттік корпорациясына, тіркелген жеріндегі мемлекеттік кіріс органына дереу жазбаша түрде немесе электрондық цифрлық қолтаңбаны қолдана отырып, интернет-ресурс арқылы хабарлауға мiндеттi.
2. Заңды тұлғаның мүлкiн меншiктенушi немесе заңды тұлғаны тарату туралы шешiм қабылдаған орган тарату комиссиясын құрады және осы Кодекске сәйкес тарату тәртiбi мен мерзiмiн белгiлейдi.
Тарату комиссиясы құрылған кезден бастап заңды тұлғаның мүлкiн және iстерiн басқару жөнiндегі өкiлеттiк соған ауысады. Тарату комиссиясы сотта таратылатын заңды тұлға атынан әрекет етедi.
3. Тарату комиссиясы заңды тұлғаны тарату, сондай-ақ оның кредиторларының талаптарын мәлiмдеу тәртiбi мен мерзiмi туралы ақпаратты Қазақстан Республикасының барлық аумағына таралатын мерзімді баспасөз
басылымдарында жариялайды. Банкроттық жағдайларын қоспағанда, талаптарды мәлiмдеу мерзiмi тарату туралы хабарландыру жарияланған кезден бастап екi айдан кем болмауы тиіс. Банкроттық кезінде кредиторлардың банкротқа қоятын талаптары кредиторлардың талаптарын мәлімдеу тәртібі туралы хабарландыру жарияланған кезден бастап бір ай мерзімнен кешіктірілмей мәлімделуге тиіс.
Тарату комиссиясы несие берушiлердi анықтау және қарыздарын алу үшiн шаралар қолданады, сондай-ақ несие берушiлерге заңды тұлғаның таратылғандығы туралы жазбаша хабарлайды.
4. Несие берушiлер талаптарын қоюға арналған мерзiм аяқталғаннан кейiн тарату комиссиясы аралық тарату балансын жасайды, онда таратылатын заңды тұлға мүлкiнiң құрамы, несие берушiлер қойған талаптар тiзбесi, сондай-ақ оларды қарау нәтижелерi туралы мәлiметтер болады.
Аралық тарату балансын заңды тұлғаның мүлкiн меншiктенушi немесе заңды тұлғаны тарату жөнiнде шешiм қабылдаған орган бекiтедi.
Аралық тарату балансын жасаған кезде таратылатын заңды тұлға мүлкiнiң құрамына арнайы қаржы компаниясының жобалық қаржыландыру кезiндегi міндеттемелері бойынша, Қазақстан Республикасының жобалық қаржыландыру және секьюритилендiру туралы заңнамасына сәйкес шығарылған арнайы қаржы компаниясының секьюритилендiру кезiндегi облигациялары бойынша қамтамасыз ету болып табылатын бөлiнген активтер және ипотекалық облигациялар бойынша: ипотекалық тұрғын үй қарызы шарттары бойынша талап ету құқықтары (ипотекалық куәлiктердi қоса алғанда), сондай-ақ көрсетiлген облигацияларды ұстаушыларда меншiк құқығы мәмiлелер бойынша не Қазақстан Республикасының заңнамалық актiлерiнде көзделген өзге де негiздер бойынша туындаған немесе оларға ауысқан жағдайларда Қазақстан Республикасының мемлекеттiк бағалы қағаздары қамтамасыз ету болып табылатын кепiл мүлкi енгiзiлмейдi. Тарату комиссиясы көрсетілген мүлік пен бөлінген активтерді кредиторлардың талаптарын қанағаттандыру үшін Қазақстан Республикасының жобалық қаржыландыру және секьюритилендіру туралы заңнамасына сәйкес айқындалған ипотекалық облигацияларды ұстаушылардың өкіліне, кредиторлардың және (немесе) облигацияларды ұстаушылардың өкіліне береді.
Аралық тарату балансын жасау кезінде таратылатын мемлекеттік ислам арнайы қаржы компаниясы мүлкінің құрамына мемлекеттік ислам арнайы қаржы компаниясы Қазақстан Республикасы Үкіметінің шешімі негізінде сатқан мүлік кірмейді. Көрсетілген мүлікті тарату комиссиясы Қазақстан Республикасының Үкіметі айқындалған тәртіппен және мерзімдерде Қазақстан Республикасының меншігіне береді.
5. Егер таратылатын заңды тұлғаның (мемлекеттiк мекемелерден басқа) ақшасы несие берушiлердiң талабын қанағаттандыру үшiн жеткiлiксiз болса,
тарату комиссиясы заңды тұлғаның мүлкiн сот шешiмдерiн орындау үшiн белгiленген тәртiп бойынша жария сатуды жүзеге асырады.
Таратылатын заңды тұлға мүлкінің құрамына енгізілген кепілге салынған мүлікті жария сауда-саттықта сату кезінде кепілді кредиторлардың талаптары кепілге салынған мүлікті өткізуден алынған сома шегінде басқа кредиторлардың алдында артықшылықпен қанағаттандырылады.
Кепіл нысанасын өткізуден түскен сома жеткіліксіз болған жағдайда, кепілді кредитор талаптарының қалған сомасы осы Кодекстің 51-бабында белгіленген кезектілік тәртібімен қанағаттандырылады.
6. Тарату комиссиясы таратылатын заңды тұлғаның кредиторларына ақша төлеудi аралық тарату балансы бекiтiлген күннен бастап, соған сәйкес, осы Кодекстiң 51-бабында белгiленген кезектілік тәртiбiмен жүргiзедi. Акционерлiк қоғамдардың мүлкiн бөлу ерекшелiктерi Қазақстан Республикасының акционерлiк қоғамдар туралы заңнамасында белгiленедi.
Таратылатын заңды тұлға мүлкінің құрамында кепілге салынған мүлік болған кезде кепілді кредитор өз талаптарын кепілге салынған мүлікті заттай қабылдау арқылы қанағаттандыруға құқылы.
Тарату комиссиясы кепілді кредитордан кепілге салынған мүлікті заттай қабылдайтыны туралы хабарламаны алған күннен бастап он жұмыс күні ішінде мүлікке бағалау жүргізеді.
Кепілге салынған мүлікті кепілді кредиторға беру осы тармақтың бесінші және алтыншы бөліктерінде көзделген талаптар ескеріле отырып, бағалау жүргізілгеннен кейін жүргізіледі.
Егер кепілге салынған мүліктің кепіл нысанасын бағалауға жұмсалған шығыстар шегерілгендегі бағалау құны кепілді кредитордың талаптарынан көп болған жағдайда, онда кепілді кредитор осы айырманы таратылатын заңды тұлға мүлкінің құрамына қайтарады.
Егер кепілге салынған мүліктің кепіл нысанасын бағалауға жұмсалған шығыстар шегерілгендегі бағалау құны кепілді кредитордың талаптарынан аз болған жағдайда, кепілді кредитордың айырма мөлшеріндегі талаптары осы Кодекстің 51-бабында белгіленген кезектілік тәртібімен қанағаттандырылуға жатады.
7. Несие берушiлермен есеп айырысу бiткеннен кейiн тарату комиссиясы тарату балансын жасайды, оны заңды тұлғаның мүлкiн меншiктенушi немесе заңды тұлғаны тарату туралы шешiм қабылдаған орган бекiтедi.
8. Несие берушiлердiң талаптары қанағаттандырылғаннан кейiн қалған мүлiк құрылтай құжаттарында көрсетiлген мақсаттарға жұмсалады.
9. Несие берушiлердiң талаптарын қанағаттандыру үшiн таратылатын қазыналық кәсiпорынның - мүлкi, ал таратылатын мекеменiң ақшасы жеткiлiксiз
болған жағдайда, несие берушiлер талаптарының қалған бөлiгiн осы кәсiпорынның немесе мекеменiң мүлкiн меншiктенушi есебiнен қанағаттандыру туралы талап қойып сотқа жүгiнуге құқылы.
9-1. Алып тасталды - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
10. Заңды тұлғаның таратылуы аяқталды, ал заңды тұлға өз қызметін тоқтатты деп бұл жөнінде мәліметтер Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiне енгізілгеннен кейiн есептеледі.
Ескерту. 50-бапқа өзгерістер енгізілді - ҚР 1996.07.15 N 30-I, 1997.07.11. N 154, 1998.03.02. N 211, 1998.07.10. N 282, 1998.12.16. N 320, 2003.06.03. N 426, 2006.01.10. N 115(ресми жарияланған күнінен бастап қолданысқа енгізіледі), 2006.02.20. N 127(қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12. N 225, 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі), 2012.01.12 N 539-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi), 2012.12.24 N 60-V ( алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.11.2014 № 248-V ( алғашқы ресми жарияланған күнінен кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 29.10.2015 № 376-V (01.01.2016 бастап қолданысқа енгізіледі); 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.04.2019 № 241-VI (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
51-бап. Несие берушiлердiң талаптарын қанағаттандыру
1. Банкроттық жағдайларын қоспағанда, заңды тұлға таратылған кезде оның кредиторларының талаптары мынадай кезектілікпен қанағаттандырылады:
1) бiрiншi кезекте - жалақыдан және (немесе) өзге де кiрiстен ұсталған алименттерді төлеу жөнiндегi талаптар, сондай-ақ таратылатын заңды тұлға өмiрiне немесе денсаулығына зиян келтiргенi үшiн алдында жауаптылықта болатын азаматтардың талаптары тиiстi мерзiмдiк төлемдердi капиталға айналдыру жолымен қанағаттандырылады;
РҚАО-ның ескертпесі! 2) тармақшаға өзгеріс енгізу көзделген - ҚР 02.08.2015 № 342-V Заңымен (
01.01.2020 бастап қолданысқа енгізіледі). 2) екінші кезекте – Қазақстан Республикасының банкроттық мәселелерін
реттейтін заңнамалық актісіне сәйкес талаптар сомаларының бір бөлігі бесінші
кезекте қанағаттандырылатын жағдайларды қоспағанда, еңбек шарты бойынша жұмыс істеген адамдарға еңбегіне ақы төлеу және өтемақылар төлеу, Мемлекеттiк әлеуметтiк сақтандыру қорына әлеуметтiк аударымдар, жалақыдан ұсталған міндетті зейнетақы жарналары, міндетті кәсіптік зейнетақы жарналары, әлеуметтік медициналық сақтандыру қорына міндетті әлеуметтік медициналық сақтандыруға аударымдар және (немесе) жарналар бойынша берешекті төлеу, сондай-ақ авторлық шарттар бойынша сыйақылар төлеу жөніндегі есеп айырысулар жүргізіледі;
3) үшінші кезекте – ипотекалық тұрғын үй қарызы шарттары бойынша талап ету құқықтарының кепілімен (ипотекалық куәліктер кепілін қоса алғанда) қамтамасыз етілген ипотекалық облигацияларды ұстаушыларда оларға меншік құқығы туындаған немесе оларға мәмілелер бойынша не Қазақстан Республикасының заңнамалық актілерінде көзделген өзге де негіздер бойынша ауысқан жағдайларда, кредиторлардың – көрсетілген облигацияларды, Қазақстан Республикасының мемлекеттік бағалы қағаздарын ұстаушылардың талаптарын, сондай-ақ кредиторлардың осы Кодекстің 50-бабы 5-тармағының екінші бөлігіне немесе 6-тармағының екінші бөлігіне сәйкес қанағаттандырылған талаптарын қоспағанда, кредиторлардың таратылатын банкрот мүлкінің кепілімен қамтамасыз етілген міндеттемелері жөніндегі талаптары қамтамасыз ету сомасы шегінде қанағаттандырылады;
4) төртiншi кезекте салық және бюджетке төленетiн басқа да мiндеттi төлемдер жөнiндегi берешек өтеледi;
5) бесiншi кезекте – Қазақстан Республикасының заңнамалық актілеріне сәйкес басқа кредиторлармен, сондай-ақ осы Кодекстің 50-бабы 5-тармағының үшінші бөлігінде және 6-тармағының алтыншы бөлігінде көзделген жағдайларда кепілді кредиторлармен есеп айырысу жүргізіледі.
2. Әр кезектiң талаптары оның алдындағы кезек талаптары толық қанағаттандырылып болғаннан кейiн қанағаттандырылады.
3. Таратылған заңды тұлғаның мүлкi жеткiлiксiз болған жағдайда, егер заңда өзгеше белгiленбесе, ол несие берушiлер арасында тиiстi кезекпен қанағаттандырылуға жататын талаптардың сомаларына қарай бөлiнедi.
4. Тарату комиссиясы несие берушiнiң талаптарын қанағаттандырудан бас тартқан не оларды қараудан жалтарған жағдайда, несие берушi заңды тұлғаның тарату балансы бекiтiлгенге дейiн тарату комиссиясына талап қойып сотқа жүгiнуге құқылы. Соттың шешiмi бойынша несие берушiнiң талаптары таратылған заңды тұлғаның қалған мүлкi есебiнен қанағаттандырылуы мүмкiн.
5. Заңды тұлғаның несие берушiлердiң талаптары қанағаттандырылғаннан кейiн қалған мүлкi, егер заңдарда немесе заңды тұлғаның құрылтай құжаттарында өзгеше көзделмесе, оның бұл мүлiкке заттық құқықтары бар
немесе заңды тұлға жөнiнде мiндеттемелiк құқықтары бар меншiк иесiне немесе құрылтайшыларына (қатысушыларына) берiледi.
6. Таратылатын заңды тұлға мүлкiнiң жеткiлiксiз болуына байланысты несие берушiлердiң қанағаттандырылмаған, сондай-ақ тарату балансын бекiткенге дейiн мәлiмделмеген талаптары өтелген деп есептеледi.
Егер несие берушi талап қойып сотқа жүгiнбесе, несие берушiлердiң тарату комиссиясы мойындамаған талаптары да, сот шешiмiмен несие берушiге қанағаттандырудан бас тартылған талаптар да өтелген деп есептеледi.
Ескерту. 51-бапқа өзгерістер енгізілді - ҚР 1997.01.21. № 68-I, 2001.07.11. № 239, 2003.06.03. № 426, 2004.04.08. № 542 (2005.01.01 бастап қолданысқа енгізіледі), 2007.01.12. № 225, 21.06.2013 № 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 16.11.2015 № 406-V (01.07.2017 бастап қолданысқа енгізіледі); 02.04.2019 № 241-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
52-бап. Банкроттық
Банкроттық - борышкердiң соттың шешiмiмен танылған оны таратуға негiз болып табылатын дәрменсiздiгi.
РҚАО-ның ескертпесі! Екінші бөлікке өзгеріс енгізу көзделген - ҚР 02.08.2015 № 342-V Заңымен (
01.01.2020 бастап қолданысқа енгізіледі). Борышкердiң (дара кәсiпкердiң немесе заңды тұлғаның) ақшалай
мiндеттемелер бойынша кредитордың талаптарын толық көлемде қанағаттандыруға, еңбек шарты бойынша жұмыс iстейтiн адамдармен еңбегiне ақы төлеу жөнiнде есеп айырысу жүргізуге, салықтарды және бюджетке төленетін басқа да міндетті төлемдерді, Мемлекеттік әлеуметтік сақтандыру қорына әлеуметтік аударымдарды, әлеуметтік медициналық сақтандыру қорына міндетті әлеуметтік медициналық сақтандыруға аударымдарды және (немесе) жарналарды, сондай-ақ мiндеттi зейнетақы жарналарын және міндетті кәсіптік зейнетақы жарналарын төлеуді қамтамасыз етуге сот белгілеген қабiлетсiздiгi оның дәрменсiздiгi деп түсiнiледi.
Ескерту. 52-бап жаңа редакцияда - ҚР 1997.01.21. № 68-I Заңымен, өзгерістер енгізілді - ҚР 1998.06.29. N 238, 2008.07.05 № 60-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 07.03.2014 № 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 16.11.2015 № 406-V (01.07.2017 бастап қолданысқа енгізіледі) Заңдарымен.
53-бап. Банкрот деп тану
1. Банкроттық ерiктi түрде немесе мәжбүр ету тәртiбiмен танылуы мүмкiн. 2. Банкроттықты ерiктi түрде тану борышкердiң сотқа берген өтiнiшi
негiзiнде жүзеге асырылады. 3. Мәжбүр ету тәртiбiмен банкрот деп тану несие берушiнiң, ал заң
актiлерiнде көзделген жағдайларда өзге де адамдардың сотқа өтiнiш беруi негiзiнде жүзеге асырылады.
Ескерту. 53-бап жаңа редакцияда - ҚР 1997.01.21. № 68-I Заңымен, өзгеріс енгізілді - ҚР 1998.06.29. № 238 Заңымен.
54-бап. Оңалту рәсiмдерi
Төлемге қабілетсіз борышкерге оның таратылуын болғызбау мақсатында төлемге қабілеттілігін қалпына келтіруге бағытталған, заңнамаға қайшы келмейтiн кез келген шаралар қолданылуы мүмкiн.
Көрсетiлген шаралар жеделдетiлген оңалту рәсiмi, оңалту рәсiмi шеңберiнде iске асырылады, оларды жүзеге асырудың тәртiбi мен мерзiмдерi Қазақстан Республикасының оңалту және банкроттық туралы заңнамасында айқындалады.
Ескерту. 54-бап жаңа редакцияда - ҚР 2012.02.17 № 564-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 № 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
54-1. Сырттай байқау
Ескерту. 54-1-бап алып тасталды - ҚР 07.03.2014 № 177-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа е н г і з і л е д і ) .
55-бап. Банкроттық рәсімін қозғау салдарлары
1. Сот борышкерді банкрот деп тану және банкроттық рәсімін қозғау туралы шешім шығарған күннен бастап:
1) банкрот мүлкінің меншік иесіне (ол уәкілеттік берген органға), банкрот-заңды тұлғаның құрылтайшыларына (қатысушыларына), барлық органдарына мүлікті иеліктен шығаруға және міндеттемелерді өтеуге тыйым салынады;
2) банкроттың барлық борыштық мiндеттемелерiнiң мерзiмдерi өткен деп саналады;
3) банкрот берешегінің барлық түрлерi бойынша тұрақсыздық айыбы мен сыйақыны (мүдденi) есептеу тоқтатылады;
4) банкроттың қатысуымен сотта қаралатын мүліктік сипаттағы даулар, егер олар бойынша қабылданған шешімдер заңды күшіне енбеген болса, тоқтатылады ;
5) үшінші тұлғалардың кепілдіктер мен кепілгерліктерді орындау жөніндегі талаптарын, сондай-ақ үшінші тұлғалар кепіл беруші ретінде әрекет ететін жағдайларда кепіл затына өндіріп алуды қолдануды қоспағанда, банкроттық рәсімі шеңберінде ғана банкротқа талаптар қойылуы мүмкін;
6) уақытша немесе банкроттықты басқарушының өтініші және борышкерді банкрот деп тану туралы сот шешімінің ұсынылған көшірмесі негізінде банкроттың мүлкіне барлық шектеулер мен ауыртпалықтар (борышкердің шоттарына қаржылық және мемлекеттік органдардың инкассолық өкімдері, сот орындаушылары тағайындаған мүлікке тыйым салу және басқалар) оларды салған органдардың тиісті шешімдері қабылданбастан алып тасталады;
7) банкроттың мүлкіне жаңа тыйым салуларға және банкроттың мүлкіне иелік етудегі өзге де шектеулерге мәмілені жарамсыз деп тану және мүлікті бөгденің заңсыз иеленуінен талап ету туралы банкротқа қойылатын қуынымдар бойынша ғана жол беріледі;
8) банкроттық рәсімі қозғалған кезде сатып алушыға берілмеген банкроттың мүлкі банкроттың мүліктік массасының құрамына енгізіледі, ал кредитор немесе орындалмаған міндеттеме бойынша дәрменсіз болған сатып алушы банкроттық рәсімі шеңберінде борышкерге өзінің талаптарын қоюға құқылы.
Ескерту. 55-бап жаңа редакцияда - ҚР 07.03.2014 N 177-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
56-бап. Дәрменсiз борышқорды борыштардан босату
1. Мүлiктi сатқаннан кейiн және сатудан түскен ақшаны несие берушiлердiң арасында бөлгеннен кейiн дәрменсiз борышқор қалған мiндеттемелер мен орындауға ұсынылған және заңды тұлғаны банкрот деп тану кезiнде есепке алынған өзге де талаптарды орындаудан босатылады.
2. Дәрменсiз борышқор, егер өзiнiң мүлкiнiң бiр бөлiгiн тарату iс басталғанға дейiнгi үш жыл iшiнде жасырса немесе жасыру мақсатымен басқа адамға берiп жiберсе, бухгалтерлiк кiтаптарды, шоттарды, құжаттарды қоса алғанда, қажеттi
есеп-қисап ақпаратын жасырса немесе қолдан жасаса мiндеттемелерiн орындаудан босатылмайды.
Ескерту. 56-бапқа өзгеріс енгізілді - ҚР 1998.03.02. N 211, 2001.07.11. N 239, 2006.01.10. N 115(ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
57-бап. Банкрот болған заңды тұлға қызметiнiң тоқтатылуы
1. Заңды тұлғаны соттың банкрот деп тануы оның таратылуына әкелiп соқтырады.
2. Банкрот-заңды тұлға Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiнен алып тасталған кезден бастап оның қызметi тоқтатылды деп есептеледі.
Ескерту. 57-бапқа өзгеріс енгізілді - ҚР 2012.12.24 N 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңымен.
II. Шаруашылық серiктестiк 1. Жалпы ережелер
58-бап. Шаруашылық серiктестiк туралы негiзгi ережелер
1. Жарғылық капиталы құрылтайшылардың (қатысушылардың) үлесiне ( салымдарына) бөлiнген коммерциялық ұйым шаруашылық серiктестiк деп танылады. Құрылтайшылардың (қатысушылардың) салымдары есебiнен құрылған, сондай-ақ шаруашылық серiктестiк өз қызметi үрдiсiнде өндiрген және алған мүлiк меншiк құқығы бойынша серiктестiкке тиесiлi болады.
2. Шаруашылық серiктестiктер толық серiктестiк, сенiм серiктестiгi, жауапкершiлiгi шектеулi серiктестiк, қосымша жауапкершiлiгi бар серiктестiк нысандарында құрылуы мүмкiн.
3. Толық және сенiм серiктестiгiнен басқа, шаруашылық cepіктестікті бiр тұлға құра алады, ол оның жалғыз қатысушысы болады.
Толық серiктестiктiң қатысушылары және сенiм серiктестiгiндегi толық серiктер азаматтар ғана бола алады.
4. Құрылтай шарты мен жарғы шаруашылық серiктестiктiң құрылтай құжаттары болып табылады.
Жарғы бiр адам (бiр қатысушы) құрған шаруашылық серiктестiктiң құрылтай құжаты болып табылады.
5. Алып тасталды - ҚР 2012.12.24 N 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңымен.
6. Шаруашылық серiктестiктiң құрылтай құжаттарында осы Кодекстiң 41- бабының 4 және 5-тармақтарында аталған мәлiметтерге қоса әрбiр қатысушының үлес мөлшерi туралы; серiктестiктiң жарғылық капиталына олар салатын салымның мөлшерi, құрамы, мерзiмi және тәртiбi туралы; серiктестiктiң жарғылық капиталына салым салу жөнiндегi мiндеттердi бұзғаны үшiн қатысушылардың жауапкершiлiгi туралы ережелер, сондай-ақ заң құжаттарында көзделген өзге де мәлiметтер болуға тиiс.
7. Алып тасталды - ҚР 1998.03.02 N 211 Заңымен. 8. Шаруашылық серiктестiк, заң құжаттарында көзделген реттердi қоспағанда
, басқа шаруашылық серiктестiктердiң құрылтайшысы болуы мүмкiн. 9. Алып тасталды - ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған
күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен. Ескерту. 58-бапқа өзгеріс енгізілді - ҚР 1997.07.11 № 154, 1998.03.02 № 211,
1998.07.10 № 282, 2003.05.16 № 416, 2005.07.08 № 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12 № 225, 2010.01.20 № 239-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2011.12.28 № 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.12.24 № 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
59-бап. Шаруашылық серiктестiктiң жарғылық капиталына салым салу. Шаруашылық серiктестiктiң жарғылық капиталындағы және мүлкiндегi қатысушының үлесi
1. Ақша, бағалы қағаздар, заттар, зияткерлiк қызмет нәтижесi құқығын қоса алғанда, мүлiктiк құқықтар және өзге де мүлiк (жарғылық капиталы тек қана ақшамен қалыптастырылатын, Қазақстан Республикасының жобалық қаржыландыру және секьюритилендiру туралы заңнамасына сәйкес құрылатын арнайы қаржы компанияларын, Қазақстан Республикасының микроқаржы ұйымдары туралы заңнамасына сәйкес құрылатын микроқаржы ұйымдарын және Қазақстан Республикасының бағалы қағаздар нарығы туралы заңнамасына сәйкес құрылатын исламдық арнайы қаржы компанияларын қоспағанда) шаруашылық серiктестiктiң жарғылық капиталына салынатын салым бола алады.
Құрылтайшылардың (қатысушылардың) жарғылық капиталға заттай нысанда немесе мүлiктiк құқықтар түрiнде салған салымдары барлық құрылтайшылардың келiсiмi бойынша немесе серiктестiктiң барлық қатысушыларының жалпы жиналысының шешiмi бойынша ақшалай нысанда бағаланады. Егер мұндай
салымның құны жиырма мың айлық есептiк көрсеткiш мөлшерiне барабар сомадан асып кетсе, оның бағасын бағалаушы растауға тиiс.
Шаруашылық серiктестiгiн қайта тiркеген кезде оған қатысушының салымын ақшалай бағалау серiктестiктiң бухгалтерлiк құжаттарымен не аудиторлық есеппен расталуы мүмкiн.
Серiктестiктiң құрылтайшылары (қатысушылары) осындай баға берiлген кезден бастап бес жыл бойы серiктестiктiң несие берушiлерi алдында салым бағасы арттырылған сома шегiнде бiрлесiп жауап бередi.
Серiктестiкке салым ретiнде мүлiктi пайдалану құқығы берiлетiн жағдайларда бұл салымның мөлшерi құрылтай құжаттарында көрсетiлген барлық мерзiмге есептелген осы мүлiктi пайдалану төлемiмен анықталады.
Жеке мүліктік емес құқықтар және өзге де материалдық емес игіліктер түрінде салымдар енгізуге жол берілмейді. Сондай-ақ Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайларды қоспағанда, серіктестікке қатысушылардың талаптарын есепке жатқызу жолымен салымдар енгізуге жол берілмейді.
2. Егер құрылтай құжаттарында өзгеше көзделмесе, жарғылық капиталдағы барлық қатысушылардың үлестерi және тиiсiнше олардың шаруашылық серiктестiгi мүлкiнiң құнындағы үлестерi (мүлiктегi үлес) жарғылық капиталдағы салымдарына барабар болады.
Егер Қазақстан Республикасының заңнамалық актiлерінде немесе құрылтай құжаттарында өзгеше көзделмесе, шаруашылық серiктестiгіне қатысушының серiктестiк мүлкіндегі (жарғылық капиталындағы) өз үлесін немесе оның бір бөлігін кепілге салуға және (немесе) сатуға құқығы бар.
Тарапы жеке тұлға болып табылатын шаруашылық серiктестiгінің шығатын қатысушысының серіктестік мүлкіндегі (жарғылық капиталындағы) үлесіне немесе оның бір бөлігіне құқығын иеліктен шығару (басқаға беру) шарты нотариаттық куәландырылуға жатады.
3. Жарғылық капиталға салым салудың тәртiбi мен мерзiмi, сондай-ақ жарғылық капиталды құру жөнiндегi мiндеттердi орындамағаны үшiн жауапкершiлiк заң құжаттарында және (немесе) құрылтай құжаттарында белгiленедi.
4. Шаруашылық серiктестiгiнiң жарғылық капиталын азайтуға оның барлық несие берушiлерiне хабарланғаннан кейiн жол берiледi. Олар бұл жағдайда серiктестiктiң мерзiмiнен бұрын тоқтатылуын немесе тиiстi мiндеттемелерiн орындауын және оның зиянды өтеуiн талап етуге құқылы.
Осы тармақта белгiленген тәртiптi бұза отырып жарғылық капиталды азайту мүдделi адамдардың арызы негізінде сот шешiмiмен серiктестiктi таратуға негiз болып табылады.
Ескерту. 59-бапқа өзгеріс енгізілді - ҚР 1996.07.15 № 30, 1997.07.11 № 154, 1998.03.02 № 211, 2006.02.20 № 127 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2006.05.05 № 139, 2009.02.12 № 133-IV (қолданысқа енгізілу тәртібін 2 -баптан қараңыз), 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.01.12 № 539-IV ( алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi), 2012.11.26 № 57-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.12.24 № 60-V (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 21.01.2019 № 217-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
60-бап. Шаруашылық серiктестiктi басқару
1. Шаруашылық серiктестiктiң жоғары органы оның қатысушыларының жалпы жиналысы болып табылады.
Толық серiктестiктен және сенiм серiктестiгiнен басқа, бiр тұлға құрған шаруашылық серiктестiктерде жалпы жиналыстың өкiлеттiгi оның бiрден бiр қатысушысына тиесiлi болады.
2. Шаруашылық серiктестiкте оның қызметiне күнделiктi басшылық жасайтын және оның қатысушыларының жалпы жиналысына есеп берiп отыратын атқарушы орган (алқалық және (немесе) жеке-дара құрылады). Жеке-дара басқару органы оның қатысушылары арасынан сайланбауы мүмкiн.
Серiктестiктiң алқалы органдары ретiнде: 1) басқарма (дирекция); 2) байқаушы кеңес; 3) заң актiлерiнде немесе шаруашылық серiктестiгi қатысушыларының жалпы
жиналысының шешiмiнде көзделген жағдайларда басқа да органдар құрылуы мүмкiн.
2-1. Шаруашылық серіктестігі банкрот деп танылған немесе оңалту рәсімі қолданылған және заңда белгіленген тәртіппен уақытша не банкроттықты немесе оңалтуды басқарушы тағайындалған жағдайда, оны басқару жөніндегі барлық өкілеттік тиісінше уақытша не банкроттықты немесе оңалтуды басқарушыға өтеді.
3. Шаруашылық серiктестiктiң органдарының құзыретi, оларды сайлау ( тағайындау) тәртiбi, сондай-ақ олардың шешiмдер қабылдау тәртiбi осы Кодекске, заң құжаттарына және құрылтай құжаттарына сәйкес белгiленедi.
4. Шаруашылық серiктестiгi қаржы есептерiнiң дұрыстығын тексеру және растату үшiн серiктестiкпен немесе оның қатысушыларымен мүлiктiк мүдделер жөнiнен байланысы жоқ аудиторлық ұйымды тарта алады (сыртқы аудит).
Шаруашылық серiктестiгiн аудиторлық тексеру серiктестiк бiр немесе бiрнеше қатысушысының талап етуi бойынша соның (солардың) есебiнен кез келген уақытта жүргiзiлуге тиiс.
Шаруашылық серiктестiгiнiң қызметiне аудиторлық тексерудi жүргiзу тәртiбi заңдармен және серiктестiктiң құрылтай құжаттарымен белгiленедi.
Ескерту. 60-бапқа өзгерістер енгізілді - ҚР 1998.03.02. № 211, 1998.04.22. № 221, 2006.05.05. № 139, 2007.01.12. № 225; 07.03.2014 № 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
61-бап. Шаруашылық серiктестiкке қатысушылардың құқықтары мен мiндеттерi
1. Шаруашылық серiктестiкке қатысушылардың: 1) құрылтай құжаттарында белгiленген тәртiппен шаруашылық серiктестiктiң
iстерiн басқаруға қатысуға; 2) шаруашылық серiктестiктiң қызметi туралы ақпарат алуға және құрылтай
құжаттарында белгiленген тәртiппен оның құжаттамаларымен танысуға; 3) таза табысты бөлiсуге қатысуға құқығы бар. Құрылтай құжаттарының бiр
немесе бiрнеше қатысушыны таза табысты бөлiсуге қатысудан шеттетудi көздейтiн талаптары маңызсыз болады;
4) шаруашылық серiктестiк таратылған жағдайда несие берушiлермен есеп айырысқаннан кейiн қалған серiктестiк мүлкiндегi өздерiнiң үлесiне сәйкес мүлiктiң бiр бөлiгiн немесе оның құнын алуға.
Шаруашылық серіктестікке қатысушылардың заң құжаттарында және құрылтай құжаттарында көзделген басқа да құқықтары болуы мүмкін.
2. Шаруашылық серiктестiкке қатысушылар: 1) құрылтай құжаттарының талаптарын сақтауға;
2) салымдарды құрылтай құжаттарында көзделген тәртiп, мөлшер, әдiстер және мерзiмдер бойынша салып отыруға;
3) шаруашылық серiктестiк коммерциялық құпия деп жариялаған мәлiметтердi жария етпеуге мiндеттi.
Шаруашылық серiктестiктiң қатысушылары Қазақстан Республикасының заңнамалық актілерінде және құрылтай құжаттарында көзделген басқа да мiндеттердi атқаруы мүмкiн.
Ескерту. 61-бапқа өзгерістер енгізілді - ҚР 1997.07.11. № 154, 1998.03.02. № 211, 2007.02.19. № 230 (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
62-бап. Шаруашылық серiктестiктердi қайта құру
1. Шаруашылық серiктестiктер заң құжаттарында белгiленген реттер мен тәртiп бойынша қатысушылардың жалпы жиналысының шешiмiмен шаруашылық серiктестiктiң бiр түрiнен екiншi түрi не акционерлік қоғамдар немесе өндiрiстiк кооперативтер болып қайта құрылуы мүмкiн.
2. Толық серiктестiк немесе сенiм серiктестiгi акционерлiк қоғам, жауапкершiлiгi шектеулi немесе қосымша жауапкершiлiгi бар серiктестiк болып қайта құрылған жағдайда акционерлiк қоғамның, жауапкершiлiгi шектеулi немесе қосымша жауапкершiлiгi бар серiктестiктiң қатысушысы болған әрбiр толық серiктес толық серiктестiктен немесе сенiм серiктестiгiнен акционерлiк қоғамға, жауапкершiлiгi шектеулi немесе қосымша жауапкершiлiгi бар серiктестiкке көшкен мiндеттемелер бойынша екi жыл бойы өзiнiң барлық мүлкiмен субсидиялық жауапты болады. Бұрынғы толық серiктестiң өзiне тиесiлi акцияларды (үлестердi) иелiктен шығаруы оны мұндай жауапкершiлiктен босатпайды.
Ескерту. 62-бапқа өзгеріс енгізілді - ҚР 1996.07.15. N 30-I, 1999.07.16. N 436-I Заңдарымен.
2. Толық серiктестiк
63-бап. Толық серiктестiк туралы негiзгi ережелер
1. Толық серiктестiктiң мүлкi жеткiлiксiз болған жағдайда қатысушылары серiктестiктiң мiндеттемелерi бойынша өзiне тиесiлi барлық мүлкiмен ортақ жауапкершiлiкте болатын серiктестiк толық серiктестiк деп танылады.
2. Азамат бiр ғана толық серiктестiктiң қатысушысы бола алады.
64-бап. Толық серiктестiктiң жарғылық капиталы
Толық серiктестiктiң жарғылық капиталының мөлшерiн оның құрылтайшылары айқындайды, бiрақ ол Қазақстан Республикасының заңнамалық актілерінде белгiленген ең төменгi мөлшерден кем болмауы керек.
Толық серiктестiк нысанында құрылған микроқаржы ұйымдарының жарғылық капиталының ең төменгі мөлшерi Қазақстан Республикасының микроқаржы ұйымдары туралы заңнамасында айқындалады.
Ескерту. 64-бап жаңа редакцияда - ҚР 2012.11.26 N 57-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
65-бап. Толық серiктестiктiң iсiн жүргiзу
1. Толық серiктестiктiң ең жоғары органы қатысушылардың жалпы жиналысы болып табылады. Толық серiктестiктiң iшкi мәселелерi жөнiндегі шешiм барлық қатысушылардың жалпы келiсiмi бойынша қабылданады. Серiктестiктiң құрылтай шартында қатысушылардың көпшiлiк даусымен шешiм қабылданатын реттер көзделуi мүмкiн. Егер құрылтай шартында оның қатысушыларының дауыс санын анықтаудың өзгеше тәртiбi көзделмесе, толық серiктестiктiң әрбiр қатысушысының бiр даусы болады. Құрылтай шартында қатысушылар алатын дауыс санын олардың жарғылық капиталдағы үлесiне сай белгiленетiндiгi көзделуi мүмкiн.
2. Толық серiктестiктi осы баптың 1-тармағының ережелерiн ескере отырып басқаруды толық серiктестiктiң атқару органдары жүзеге асырады. Басқару органдарының түрлерi, құрылу тәртiбi және олардың құзыретi құрылтай құжаттарында белгiленедi.
3. Толық серiктестiкке қатысушының қалған қатысушылардың келiсiмiнсiз өз атынан және өз мүдделерi немесе үшiншi жақтардың мүдделерi үшiн серiктестiк қызметi мәнiмен бiртектес мәмiлелер жасасуға құқығы жоқ. Бұл ереже бұзылған жағдайда серiктестiк өз қалауы бойынша мұндай қатысушылардан не серiктестiкке келтiрiлген залалдың орнын толтыруын, не осындай мәмiлелерден тапқан бүкiл пайданы серiктестiкке беруiн талап етуге құқылы.
4. Серiктестiктiң iсiн жүргiзу тапсырылған толық серiктестiктiң органдары барлық қатысушыларға олардың талап етуi бойынша өз қызметi туралы толық ақпарат берiп отыруға мiндеттi.
5. Өкiлеттiгi болмаса да ортақ мүдделер үшiн әрекет жасаған қатысушы, оның әрекеттерiн қалған қатысушылар мақұлдамаған жағдайда, егер өз әрекеттерiнiң арқасында серiктестiк құны жөнiнен серiктестiк шеккен шығындардан асып түсетiн мүлiктi сақтап қалғандығын немесе тиiсiнше сатып алғандығын
дәлелдеген жағдайда серiктестiктен өзi жасаған шығындардың орнын толтыруды талап етуге құқылы.
Ескерту. 65-бапқа өзгеріс енгізілді - ҚР 1997.07.11 N 154 Заңымен.
66-бап. Толық серiктестiкке қатысушы үлесiнiң (үлесiнiң бiр бөлiгiнiң) ауысуы
1. Толық серiктестiкке қатысушының өз үлесiн (үлесiнiң бiр бөлiгiн) оның басқа қатысушыларына немесе үшiншi жақтарға қалған барлық қатысушылардың келiсiмiмен ғана беруiне болады.
2. Үлес (үлестiң бiр бөлiгi) үшiншi жаққа берiлген жағдайда сонымен бiрге толық серiктестiктен шыққан қатысушыға тиесiлi құқықтар мен мiндеттердiң бүкiл жиынтығы соған ауысады.
3. Толық серiктестiктiң қатысушысы қайтыс болған ретте қалған барлық қатысушылардың келiсуiмен құқықты мирасқор (мұрагер) серiктестiкке кiре алады.
4. Құқықты мирасқор (мұрагер) қатысушының толық серiктестiк алдындағы борыштары бойынша, сондай-ақ серiктестiктiң үшiншi жақтар алдындағы бүкiл серiктестiк қызметi кезiнде пайда болған борыштары бойынша жауапты болады.
5. Құқықты мирасқор (мұрагер) толық серiктестiкке кiруден бас тартқан немесе құқықты мирасқорды (мұрагердi) қабылдаудан серiктестiк бас тартқан жағдайда оған қатысушы қайтыс болған күнi белгiленген серiктестiк мүлкiндегi үлестiң құқықты мирасқорлық негiзiнде өзiне тиесiлi құны төленедi.
Бұл реттерде тиiсiнше құрылтай құжаттарында (жарғысында) көзделген мерзiмде құрылтай шартында (жарғысында) аталған серiктестiк мүлкiнiң мөлшерiне азайтылады, бiрақ ол үш айдан кешiктiрiлмеуге тиiс.
67-бап. Қатысушының толық серiктестiктен шығуы
1. Толық серiктестiктiң қатысушысы оның өзге де қатысушыларына заң құжаттарында немесе құрылтай шартында көзделген мерзiмнен кешiктiрмей ескерте отырып, серiктестiктен кез-келген уақытта шыға алады.
2. Егер қатысушы шығып кеткен уақытта толық серiктестiк сақталып қалса, оның шығып кеткен күнiнде жасалған балансқа сәйкес шығып кететiн қатысушыға серiктестiк мүлкiндегi үлесiнiң салған салымына тең құны төленедi. Қатысушының талабы бойынша және серiктестiктiң келiсуiмен салымды толық немесе iшiнара заттай түрде қайтарылуы мүмкiн. Шығып кеткен қатысушыға оның осы жылы серiктестiкте болған кезеңiнде серiктестiктiң сол жылы алған таза табысының оған тиесiлi бiр бөлiгi де төленедi.
Серiктестiкке қатысушының пайдалануға ғана берген мүлкi сыйақы төленбей заттай түрде қайтарылады.
Ескерту. 67-бапқа өзгеріс енгізілді - ҚР 1997.07.11. N 154 Заңымен.
68-бап. Қатысушыны толық серiктестiктен шығару
1. Толық серiктестiкке қатысушылар қалатын қатысушылардың бiрауыздан қабылдаған шешiмi бойынша және оған дәлелдi себептер болған жағдайда, атап айтқанда, оның (олардың) өз мiндеттерiн дөрекi бұзуы немесе iс жүргiзу қабiлетсiздiгi байқалған жағдайда қатысушылардың бiреуiн немесе бiрнешеуiн серiктестiктен сот тәртiбiмен шығаруды талап етуге құқылы.
2. Толық серiктестiктен шығарылған қатысушыға осы Кодекстiң 67-бабының 2-тармағында белгiленген тәртiп бойынша мүлiктiң бiр бөлiгiнiң құны төленедi.
69-бап. Қатысушының толық серiктестiктегi үлесiн өндiрiп алуға өтiнiш жасауы
1. Қатысушының толық серiктестiктiң жеке борыштары бойынша өз үлесiн өндiрiп алуға өтiнiш жасауына борыштарды өтеу үшiн оның басқа мүлiктерi жеткiлiксiз болған жағдайда ғана жол берiледi. Мұндай қатысушының несие берушiлерi толық серiктестiктен серiктестiк мүлкiнен ақы өндiрiп алу мақсатымен борышқордың жарғылық капиталдағы үлесiне сәйкес мүлiктiң бiр бөлiгiн бөлiп берудi талап етуге құқылы. Серiктестiк мүлкiн бөлiп берiлуге жататын бөлiгi немесе оның құны несие берушiлердiң бөлiп беру туралы талаптары қойылған кезде жасалған баланс бойынша анықталады.
2. Қатысушының толық серiктестiк мүлкiндегi үлесiнен ақы өндiрiп алу оның серiктестiкке қатысуын тоқтатады және осы Кодекстiң 70 және 71-баптарында көзделген салдарға әкелiп соқтырады.
Ескерту. 69-бапқа өзгеріс енгізілді - ҚР 1997.07.11. N 154 Заңымен.
70-бап. Қатысушылардың толық серiктестiктiң борыштары бойынша жауапкершiлiгi
1. Егер толық серiктестiк таратылған жағдайда оның барлық борыштарын өтеу үшiн нақтылы мүлкi жетпейтiн болса, серiктестiк үшiн жетiспейтiн бөлiгi жөнiнен оған қатысушылар ортақ жауапкершiлiктi өздерiнiң заң құжаттарына сәйкес ақы өндiрiп алынатын барлық мүлкiмен өз мойнына алады.
Толық серiктестiктiң қатысушысы серiктестiктiң борышы бойынша егер заң құжаттарында өзгеше көзделмесе, оған өз кiргеннен кейiн немесе кiргенге дейiн пайда болғанына қарамастан жауап бередi.
2. Серiктестiк мүлкiндегi өз үлесiнен астам бөлiгiндегi толық серiктестiктiң борыштарын өтеген қатысушы өзiнiң алдында серiктестiк мүлкiндегi өз үлесiнiң мөлшерiне тең үлестiк жауапкершiлiктi мойнына алатын өзге де қатысушыларға тиiстi бөлiгiнде керi талап қоюға құқылы.
3. Толық серiктестiктен өз қалауымен шыққан немесе серiктестiктен соттың шешiмi бойынша шығарылған қатысушы, сондай-ақ қайтыс болған қатысушының серiктестiкке кiруден бас тартқан құқықты мирасқоры (мұрагерi) серiктестiктен өздерi шыққан кезге дейiн пайда болған серiктестiк мiндеттемелерi бойынша серiктестiктiң өздерi серiктестiктен шыққан жыл iшiндегi серiктестiк қызметi туралы есеп бекiтiлген күннен бастап екi жыл бойы жауап бередi.
4. Өз үлесiн бiр қатысушыға немесе үшiншi жаққа беру арқылы, серiктестiк мүлкiндегi өз үлесiнен несие берушi (несие берушiлер) ақы өндiрiп алу арқылы шыққан қатысушы, сондай-ақ қайтыс болған қатысушының серiктестiкке қабылдаудан қалған қатысушылар бас тартқан құқықты мирасқоры (мұрагерi) серiктестiк мiндеттемелерi бойынша жауап бермейдi.
5. Толық серiктестiк тоқтатылғаннан кейiн қатысушылар серiктестiк тоқтатылған күннен бастап екi жыл бойы ол тоқтатылған кезге дейiн пайда болған серiктестiк мiндеттемелерi бойынша жауапты болады.
6. Толық серiктестiктiң мiндеттемелерi бойынша өздерiнiң жауаптылығының осы бапта көзделген тәртiбiн өзгертетiн қатысушылардың келiсiмдерi маңызсыз болып табылады.
Ескерту. 70-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
71-бап. Толық серiктестiктi тарату
1. Толық серiктестiк осы Кодекстiң 49-бабында аталған негiздерден басқа серiктестiкте жалғыз қатысушы қалып, ол алты ай iшiнде серiктестiктi қайта құрмаса немесе жаңа қатысушылар қабылдамаған жағдайда да таратылады.
2. Толық серiктестiкке қатысушылардың қайсы бiреуi шығып кеткен немесе қайтыс болған жағдайда, олардың бiрi хабар-ошарсыз кеттi, әрекет қабiлеттiгi жоқ немесе әрекет қабiлеттiгi шектеулi, не банкрот деп танылған немесе несие берушi бiр қатысушы жарғылық капиталдағы оның үлесiне сәйкес келетiн мүлкiнен ақы өндiрiп алған реттерде, егер ол серiктестiктiң құрылтай
құжаттарында көзделсе немесе қалған қатысушылар келiсетiн болса, серiктестiк өз қызметiн жалғастыра бередi.
3. Егер қатысушылардың бiрi осы баптың 2-тармағында аталған негiздер бойынша серiктестiктен шығып кетсе, серiктестiктiң жарғылық капиталындағы өзге де қатысушылардың үлестерi, егер құрылтай құжаттарында өзгеше көзделмесе, олардың салымдарына қарай көбейедi.
Ескерту. 71-бапқа өзгеріс енгізілді - ҚР 1997.07.11. N 154 Заңымен.
3. Сенiм (коммандиттiк) серiктестiгi
72-бап. Сенiм серiктестiгi туралы негізгі ережелер
1. Серiктестiктiң мiндеттемелерi бойынша өзiнiң бүкiл мүлкiмен (толық серiктерiмен) қосымша жауап беретiн бiр немесе одан да көп қатысушылармен қатар, серiктестiктiң (салымшылардың) мүлкiне өздерi салған салымдардың жиынтығымен шектелетiн бiр немесе одан көп қатысушыларды да енгiзетiн және серiктестiктiң кәсiпкерлiк қызметтi жүзеге асыруға қатыспайтын серiктестiк сенiм серiктестiгi деп танылады.
2. Сенiм серiктестiгiне қатысатын толық серiктердiң құқықтық ережесi және олардың серiктестiк мiндеттемелерi бойынша жауапкершiлiгi толық серiктестiктiң қатысушылары туралы ережемен белгiленедi.
3. Азамат тек бiр ғана сенiм серiктестiгiнiң толық серiктесi бола алады. Сенiм серiктестiгiндегi толық серiктес толық серiктестiктiң қатысушысы бола
алмайды. 4. Сенiм серiктестiгiне осы Кодекстiң сенiм серiктестiктерi туралы
ережелерiне қайшы келмейтiндiктен, осы Кодекстiң толық серiктестiк туралы ережелерi қолданылады.
Ескерту. 72-бапқа өзгеріс енгізілді - ҚР 1998.03.02. N 211 Заңымен.
73-бап. Сенiм серiктестiгiнiң салымшысы
1. Сенiм серiктестiгiнiң салымшысы алғашқы салымын және қосымша жарналарын (салымдарын) құрылтай құжаттарында көзделген мөлшерде, әдiс пен тәртiп бойынша салуға мiндеттi.
2. Командиттік серiктестiк салымшысының: 1) серiктестiктің таза табысының жарғылық капиталдағы өзіне тиесілі
үлесiнің бөлігін құрылтай құжаттарында көзделген тәртiппен алуға; 2) серiктестiктiң қаржылық есебімен танысуға, сондай-ақ оның дұрыс
жасалуын тексеру мүмкiндiгiн қамтамасыз етудi талап етуге;
3) жарғылық капиталдағы өз үлесiн немесе оның бiр бөлiгiн Қазақстан Республикасының заңнамалық актілерінде және серiктестiктiң құрылтай құжаттарында көзделген тәртiппен басқа салымшыға немесе үшiншi тұлғаға беруге құқығы бар. Салымшының өзінің бүкіл үлесiн өзге тұлғаға беруi оның серiктестiкке қатысуын тоқтатады;
4) Қазақстан Республикасының заңнамалық актілерінде және құрылтай құжаттарында көзделген тәртiппен серiктестiктен шығуға құқығы бар.
Командиттік серiктестiктің құрылтай құжаттарында салымшының өзге де құқықтары көзделуі мүмкін.
Командиттік серiктестiктің салымшылары үшін осы Кодексте және Қазақстан Республикасының басқа да заңнамалық актілерінде көзделген құқықтардан бас тартуы немесе оларды шектеуі, соның ішінде салымшылар мен толық серіктестіктердің келісімі бойынша шектеуі маңызсыз болады.
3. Егер салымшы сенiм серiктестiгiнiң мүдделерiн көздеп тиiстi өкiлеттiксiз мәмiле жасаса, оның әрекеттерiн серiктестiк мақұлдаған жағдайда мәмiле бойынша ол несие берушiлердiң алдында толық көлемiнде жауап бередi. Егер ол мақұлданбаса, салымшы үшiншi жақтың алдында заңдар бойынша өзiнiң ақы өндiрiп алынатын бүкiл мүлкiмен жеке жауап бередi.
Ескерту. 73-бапқа өзгерістер енгізілді - ҚР 1997.07.11. № 154, 1998.03.02. № 211; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
74-бап. Сенiм серiктестiгiнiң жарғылық капиталы
1. Сенiм серiктестiгiнiң жарғылық капиталы оның қатысушылары салатын салымнан құралады. Шаруашылық үрдiсiнде жарғылық қор өзгертiлуi мүмкiн. Салымшылардың салымдарын есептемегенде, жарғылық капитал толық серiктестердiң сенiм серiктестiгi мүлкiндегi үлесiн белгiлейдi.
2. Жарғылық капиталдың мөлшерiн сенiм серiктестiгiнiң толық серiктестерi белгiлейдi және ол заң құжаттарында белгiленген ең төменгi мөлшерден кем болмауы керек.
Коммандиттік серiктестiк нысанында құрылған микроқаржы ұйымдарының жарғылық капиталының ең төменгі мөлшерi Қазақстан Республикасының микроқаржы ұйымдары туралы заңнамасында айқындалады.
3. Сенiм серiктестiгiнiң жарғылық капиталын азайтуға оның барлық несие берушiлерiне хабарланғаннан кейiн жол берiледi. Несие берушiлер бұл ретте тиiстi мiндеттемелердiң мерзiмiнен бұрын тоқтатылуын немесе орындалуын
және өздерi шеккен залалдың орны толтырылуын талап етуге құқылы. Осы бапта белгiленген тәртiптi бұзып жарғылық капиталды азайту мүдделi адамдардың арызы бойынша сот шешiмiмен сенiм серiктестiгiн таратуға негiз болады.
Ескерту. 74-бапқа өзгеріс енгізілді - ҚР 1997.07.11 № 154, 1998.03.02 № 211, 2012.11.26 № 57-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
75-бап. Сенiм серiктестiгiнiң iсiн басқару
Сенiм серiктестiгiнiң iсiн басқаруды толық серiктестер жүзеге асырады. Сенiм серiктестiгiнiң iсiн оның толық серiктестерiнiң басқару және жүргiзу тәртiбiн олар толық серiктестiк туралы ережелер бойынша белгiлейдi. Салымшылардың сенiм серiктестiгi iсiн басқаруға қатысуға, сондай-ақ сенiмхат бойынша болмаса, оның атынан әрекет жасауға құқығы жоқ. Сенiм серiктестiгi салымшыларының серiктестiк iсiн басқару жөнiнде толық серiктестердiң әрекеттерiне дау жасауға құқығы жоқ.
76-бап. Сенiм серiктестiгiнiң тоқтатылуы
1. Сенiм серiктестiгi оған қатысушы барлық салымшылар шығып кеткен жағдайда тоқтатылады. Толық серiктестер сенiм серiктестiгiн таратудың орнына оны толық серiктестiк етiп қайта құруға құқылы. Сенiм серiктестiгi толық серiктестiктi тарату үшiн көзделген негiздер бойынша да таратылады.
2. Салымшылар сенiм серiктестiгi таратылған кезде оның несие берушiлерiнiң талаптары қанағаттандырылғаннан кейiнгi қалған серiктестiк мүлкiнен салымдарды алуға толық серiктестер алдында артықшылық құқығы болады. Сенiм серiктестiгiнiң бұдан кейiнгi қалған мүлкi толық серiктестер мен салымшылар арасында, егер құрылтай құжаттарында өзгеше тәртiп белгiленбесе олардың серiктестiк мүлкiне қосқан үлесiне қарай бөлiнедi.
4. Жауапкершiлiгi шектеулi серiктестiк
77-бап. Жауапкершiлiгi шектеулi серiктестiк туралы негiзгi ережелер
1. Бiр немесе бiрнеше адам құрған, жарғылық капиталы құрылтай құжаттарымен белгiленген мөлшерде үлеске бөлiнген серiктестiк жауапкершiлiгi шектеулi серiктестiк деп танылады; жауапкершiлiгi шектеулi серiктестiкке қатысушылар оның мiндеттемелерi бойынша жауап бермейдi және серiктестiктiң қызметiне байланысты залалдарға өздерiнiң қосқан салымдарының құны шегiнде
тәуекел етедi. Осы ережеден өзгеше жағдайлар осы Кодексте және заң актiлерiнде көзделуi мүмкiн.
Жауапкершiлiгi шектеулi серiктестiктiң салымдарды толық қоспаған қатысушылары оның мiндеттемелерi бойынша әрбiр қатысушының салым салмаған бөлiгiнiң құны шегiнде ортақ жауапты болады.
2. Жауапкершiлiгi шектеулi серiктестiкке қатысушылардың саны шектелмейдi.
Жауапкершiлiгi шектеулi серiктестiктiң жалғыз қатысушы ретiнде бiр адамнан тұратын басқа шаруашылық серiктестiгi бола алмайды.
3. Өзiнiң кез-келген қатысушыларының талабы бойынша жауапкершiлiгi шектеулi серiктестiк қызметiне аудиторлық тексеру жүргiзiлуге тиiс.
Заңдарда немесе құрылтай құжаттарында көзделгеннен басқа реттерде жауапкершiлiгi шектеулi серiктестiктен көпшiлiк алдында есеп беру талап етiлмейдi.
4. Жауапкершiлiгi шектеулi серiктестiк оған қатысушылардың қабылдаған шешiмi бойынша өз еркiмен қайта құрылуы немесе таратылуы мүмкiн. Жауапкершiлiгi шектеулi серiктестiктi қайта құру мен таратудың өзге негiздерi осы Кодекспен және заң құжаттарымен белгiленедi.
Жауапкершiлiгi шектеулi серiктестiк өзге де шаруашылық серiктестiк акционерлік қоғам немесе өндiрiстiк кооператив болып қайта құрылуға құқылы.
6. Жауапкершiлiгi шектеулi серiктестiктiң құқықтық ережесi, оған қатысушылардың құқықтары мен мiндеттерi осы Кодекспен және заң құжаттарымен белгiленедi.
Ескерту. 77-бапқа өзгеріс енгізілді - ҚР 1996.07.15. № 30-I, 1997.07.11. № 154, 1998.03.02. № 211, 1998.04.22. № 221, 1999.07.16. № 436-I, 2003.05.16. № 416 Заңдарымен.
78-бап. Жауапкершiлiгi шектеулi серiктестiктiң жарғылық капиталы
Жарғылық капиталдың мөлшерiн жауапкершілігі шектеулі серіктестіктің құрылтайшылары (қатысушылары) айқындайды және ол Қазақстан Республикасының заңнамалық актілерінде белгiленген ең төменгi мөлшерден кем болмауы керек.
Жауапкершілігі шектеулі серiктестiк нысанында құрылған микроқаржы ұйымдарының жарғылық капиталының ең төменгі мөлшерi Қазақстан Республикасының микроқаржы ұйымдары туралы заңнамасында айқындалады.
Ескерту. 78-бап жаңа редакцияда - ҚР 2012.11.26 № 57-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі)
Заңымен.
79-бап. Жауапкершiлiгi шектеулi серiктестiктегi басқару
1. Серiктестiк органдарының құзыретi, сондай-ақ олардың серiктестiк атынан шешiмдер қабылдау немесе әрекет ету тәртiбi осы Кодекске, заң актiлерiне және серiктестiк жарғысына сәйкес белгiленедi.
2. Жауапкершiлiгi шектеулi серiктестiк қатысушыларының жалпы жиналысының айрықша құзыретiне мыналар жатады:
1) серiктестiктiң жарғысын өзгерту, соның iшiнде оның жарғылық капиталы мөлшерiн өзгерту;
2) атқарушы органның мүшелерiн (мүшесiн) сайлау (тағайындау) және олардың (оның) өкiлеттiктерiн мерзiмiнен бұрын тоқтату, сондай-ақ серiктестiктi немесе оның мүлкiн сенiмгерлiк басқаруға беру туралы шешiм қабылдау және осындай беру шарттарын айқындау;
3) серiктестiктiң қаржылық есебiн бекiту және оның таза табысын бөлу; 4) серiктестiктi қайта құру немесе тарату туралы шешiм шығару;
5) серiктестiктiң байқау кеңесiн және (немесе) тексеру комиссиясын ( тексерушiсiн) сайлау және өкiлеттiгiн мерзiмiнен бұрын тоқтату, сондай-ақ серiктестiк тексеру комиссиясының (тексерушiсiнiң) есептерi мен қорытындыларын бекiту;
6) iшкi ережелердi, оларды қабылдау рәсiмдерiн және серiктестiктiң iшкi қызметiн реттейтiн басқа да құжаттарды Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайларды қоспағанда бекiту;
7) серiктестiктiң өзге де шаруашылық серiктестiктерге, сондай-ақ коммерциялық емес бiрлестiктерге қатысуы туралы шешiм шығару;
8) тарату комиссиясын тағайындау және тарату баланстарын бекiту; 9) осы Кодекстiң 82-бабына сәйкес жауапкершiлiгi шектеулi серiктестiк
қатысушысынан үлестi мәжбүрлеп сатып алу туралы шешiм шығару. 3. Серiктестiк қатысушыларының жалпы жиналысының айрықша құзыретiне
жатқызылған мәселелердi ол серiктестiктiң атқарушы органының шешуiне бере алмайды.
Ескерту. 79-бапқа өзгеріс енгізілді - ҚР 1997.07.11. N 154, 1998.03.02. N 211, 1998.04.22. N 221, 2007.01.12. N 225, 2007.02.19. N 230(қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
80-бап. Жауапкершiлiгi шектеулi серiктестiктiң жарғылық капиталдағы үлесiнiң басқа адамға ауысуы
1. Жауапкершiлiгi шектеулi серiктестiктiң қатысушысы, осы Кодексте көзделген жағдайларды қоспағанда, серiктестiктiң жарғылық капиталындағы өз үлесiн немесе оның бiр бөлiгiн өз қалауынша осы серiктестiктiң бiр немесе бiрнеше қатысушысына сатуға немесе басқа түрде беруге құқылы.
2. Егер серiктестiктiң құрылтай құжаттарында не заңнамалық актілерде өзгеше көзделмесе, жауапкершiлiгi шектеулi серiктестiкке қатысушының өз үлесiн (оның бiр бөлiгiн) үшiншi адамдарға беруiне болады.
Жауапкершiлiгi шектеулi серiктестiкке қатысушылар, осы Кодексте және " Жауапкершілігі шектеулі және қосымша жауапкершілігі бар серіктестіктер туралы" Қазақстан Республикасының Заңында көзделген жағдайларды қоспағанда, үшiншi тұлғалар алдында үлестi немесе оның бiр бөлiгiн сатып алуға басым құқықты пайдаланады. Егер құрылтай құжаттарында немесе серiктестiкке қатысушылардың келiсiмiнде өзгеше көзделмесе, үлестi (оның бiр бөлiгiн) сатып алуға басым құқықты қатысушылар серiктестiктiң жарғылық капиталындағы өз үлестерiнiң мөлшерiне барабар жүзеге асырады.
Үлесті (оның бiр бөлiгiн) сатып алуға басым құқықты бұза отырып сатқан кезде жауапкершiлiгi шектеулi серiктестiктiң кез келген қатысушысы сатылған күннен бастап үш ай iшiнде өзiне сатып алушының құқықтары мен мiндеттерiн аударуды сот тәртiбiмен талап етуге құқылы.
3. Егер жауапкершiлiгi шектеулi серiктестiктiң құрылтай құжаттарына сәйкес қатысушының үлесiн (оның бiр бөлiгiн) үшiншi жақтарға беру мүмкiн болмаса, ал серiктестiктiң басқа қатысушылары оны сатып алудан бас тартса, серiктестiк қатысушыға оның нақты құнын төлеуге не оған сондай құнға сәйкес заттай мүлiк беруге мiндеттi.
4. Жауапкершiлiгi шектеулi серiктестiк қатысушысының үлесi оны толық төлеп болғанға дейiн оның төленген бөлiгi мөлшерiнде ғана бөлiп берiлуi мүмкiн .
5. Қатысушының үлесiн (оның бiр бөлiгiн) жауапкершiлiгi шектеулi серiктестiктiң өзi сатып алған ретте ол оны басқа қатысушыларға немесе үшiншi жаққа заң құжаттары мен серiктестiктiң құрылтай құжаттарында көзделген мерзiм мен тәртiп бойынша сатуға не өзiнiң жарғылық капиталын азайтуға мiндеттi. Осы кезең iшiнде түскен таза табысты бөлу, сондай-ақ жоғары органда дауыс беру жауапкершiлiгi шектеулi серiктестiктiң сатып алған үлесi есептелмей жүргiзiледi.
6. Егер серiктестiктiң құрылтай құжаттарында мұндай ауысуға тек серiктестiктiң қалған қатысушыларының келiсiмiмен ғана рұқсат етiлетiндiгi көзделмесе, жауапкершiлiгi шектеулi серiктестiктiң жарғылық капиталындағы үлес серiктестiктiң қатысушысы болған азаматтардың мұрагерлерiне және заңды тұлғалардың құқықты мирасқорларына ауысады. Үлестiң ауысуына келiсiм
беруден бас тарту серiктестiктi қатысушының мұрагерлерiне (мирасқорларына) заң құжаттары мен серiктестiктiң құрылтай құжаттарында көзделген тәртiп пен жағдайлар бойынша үлестiң нақты құнын төлеуге немесе оларға құны сондай заттай мүлiк беру мiндетiне әкелiп соқтырады.
Заң актiлерiнде үлестiң заңды тұлғалардың құқықтық мұрагерлерiне ауысу ерекшелiктерi көзделуi мүмкiн.
Ескерту. 80-бапқа өзгерістер енгізілді - ҚР 1997.07.11. № 154, 1998.03.02. № 211, 2007.08.07. № 321 (ресми жарияланған күнінен бастап қолданысқа енгізіледі ); 21.04.2016 № 504-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
81-бап. Жауапкершiлiгi шектеулi серiктестiк қатысушыларының қосымша жарналары
Егер жауапкершiлiгi шектеулi серiктестiктiң жарғысында өзгеше көзделмесе, қатысушылардың жалпы жиналысы серiктестiк мүлкiне қатысушылардың қосымша жарналар енгiзуi туралы шешiм қабылдай алады. Шешiм серiктестiктiң барлық қатысушыларының төрттен үш көпшiлiк дауысымен қабылданады.
Ескерту. 81-бап жаңа редакцияда - ҚР 1998.04.22. № 221 Заңымен.
82-бап. Жауапкершiлiгi шектеулi серiктестiктiң қатысушысынан үлестi мәжбүрлеп сатып алу
Жауапкершiлiгi шектеулi серiктестіктiң қатысушысы заң актiлерiнде немесе құрылтай құжаттарында белгiленген серiктестiк алдындағы өз мiндеттерiн бұзған жағдайда серiктестiк жалпы жиналыстың шешiмiне сәйкес сот бойынша осындай қатысушының үлесiн Жауапкершілігі шектеулі және қосымша жауапкершілігі бар серіктестіктер туралы" Қазақстан Республикасының Заңында белгіленген тәртіппен мәжбүрлеп сатып алуды талап етуге құқылы.
Ескерту. 82-бап жаңа редакцияда - ҚР 1998.03.02. № 211 Заңымен; өзгеріс енгізілді - ҚР 21.01.2019 № 217-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
83-бап. Қатысушының жауапкершiлiгi шектеулi серiктестiктегi үлесiнен ақы өндiрiп алу
Жауапкершiлiгi шектеулi серiктестiкке қатысушының өз борыштарын өтеу үшiн мүлкi жеткiлiксiз болған жағдайда несие берушiлер борышқор-қатысушының үлесiн белгiленген тәртiп бойынша бөлiп берудi талап етуi мүмкiн.
Ескерту. 83-бапқа өзгеріс енгізілді - ҚР 1998.03.02. № 211 Заңымен.
5. Қосымша жауапкершiлiгi бар серiктестiк
84-бап. Қосымша жауапкершiлiгi бар серiктестiк туралы негiзгi ережелер
1. Қатысушылары серiктестiк мiндеттемелерi бойынша өздерiнiң жарғылық капиталға салымдарымен жауап беретiн, ал бұл сомалар жеткiлiксiз болған жағдайда өздерiне тиесiлi мүлiкпен оған өздерi еселенген мөлшерде енгiзген салымдар арқылы жауап беретiн серiктестiк қосымша жауапкершiлiгi бар серiктестiк деп танылады.
2. Қатысушылар жауапкершiлiгiнiң шектi мөлшерi жарғыда көзделедi. Қатысушылардың бiрi банкрот болған жағдайда оның серiктестiк
мiндеттемелерi жөнiндегi жауапкершiлiгi, егер құрылтай құжаттарында жауапкершiлiктi бөлудiң өзгеше тәртiбi көзделмесе, қалған қатысушылар арасында олардың салымдарына қарай бөлiнедi.
3. Қосымша жауапкершiлiгi бар серiктестiкке, осы бапта өзгеше көзделмегендiктен, осы Кодекстiң жауапкершiлiгi шектеулi серiктестiк туралы ережелерi қолданылады.
Ескерту. 84-бапқа өзгеріс енгізілді - ҚР 1997.07.11. N 154, 1998.04.22. N 221 Заңдарымен.
III. Акционерлiк қоғам
Ескерту. 6-бөлiмше "Акционерлiк қоғам" деген III бөлiк болып есептелсiн - Қ Р 1 9 9 8 . 0 7 . 1 0 № 2 8 2 З а ң ы м е н .
85-бап. Акционерлiк қоғам ұғымы
1. Өзiнiң қызметiн жүзеге асыру үшiн қаражат тарту мақсатында акциялар шығаратын заңды тұлға акционерлiк қоғам болып танылады. Акционерлiк қоғамның акционерлерi осы заң актiлерiнде көзделгеннен басқа жағдайларда оның мiндеттемелерi бойынша жауап бермейдi және өзiне тиесiлi акциялар құнының шегiнде қоғамның қызметiне байланысты шығындар тәуекелiн көтередi .
2. Акционерлiк қоғамның өз қатысушыларының мүлкiнен оқшауланған мүлкi болады, өз мiндеттемелерi бойынша өз мүлкi шегiнде жауапты болады және өз қатысушыларының мiндеттемелерi бойынша жауап бермейдi.
3. Қоғамның барлық акцияларын бiр акционер сатып алған жағдайда акционерлiк қоғам бiр адамнан құрылуы немесе бiр адамнан тұруы мүмкiн, егер заң актiлерiнде өзгеше көзделмесе.
4. Акционерлiк қоғамның құқықтық ережелерi, акционерлердiң құқықтары мен мiндеттерi осы Кодекске, заң құжаттарына сәйкес белгiленедi. Мемлекеттiк кәсiпорындарды жекешелендiру жолымен құрылған немесе акцияларының бақылау пакеті мемлекетке тиесілі акционерлік қоғамдардың құқықтық жағдайының ерекшелiктерi Қазақстан Республикасының заң актілерімен айқындалады.
5. Заңдарда көзделген жағдайларда, акционерлiк қоғамның ұйымдық-құқықтық нысанында коммерциялық емес ұйымдар құрылуы мүмкiн.
Ескерту. 85-бапқа өзгеріс енгізілді - ҚР 1997.06.19 № 134-I, 1997.07.11 № 154, 1998.03.02 № 211, 1998.07.10 № 282; 2003.10.13 № 486, 2011.12.28 № 524-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
86-бап. Ашық және жабық акционерлiк қоғамдар
Ескерту. 86-бап алып тасталды - ҚР 2003.05.16 № 416 Заңымен.
87-бап. Акционерлiк қоғамның құрылтай құжаттары
1. Құрылтай шарты (жалғыз құрылтайшының шешiмi) мен жарғы акционерлiк қоғамның құрылтай құжаттары болып табылады.
Акционерлiк қоғамның құрылтай құжаттарында осы Кодекспен және Қазақстан Республикасының өзге де заң актiлерiмен айқындалған мәлiметтер болуға тиiс.
Акционерлiк қоғамның құрылтай құжаттары нотариаттық куәландырылуға жатады.
2. Құрылтай шартының күшi (жалғыз құрылтайшының шешiмi) жарияланған акциялар шығарылымы мемлекеттiк тiркеуден өткiзiлген күннен бастап тоқтатылады.
3. Акционерлiк қоғамның жарғысын бекiту тәртiбi Қазақстан Республикасының заң актiлерiмен белгiленедi.
Ескерту. 87-бап жаңа редакцияда - ҚР 2003.05.16. № 416 Заңымен.
88-бап. Акционерлiк қоғамның жарғылық капиталы
Акционерлiк қоғамның жарғылық капиталының ең төменгi мөлшерi және оны қалыптастыру тәртiбi, сондай-ақ оны ұлғайту тәртiбi Қазақстан Республикасының заң актiлерiмен айқындалады.
Ескерту. 88-бап жаңа редакцияда - ҚР 2003.05.16. № 416 Заңымен; өзгеріс енгізілді - ҚР 2005.07.08 № 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
89-бап. Жарияланған, шығарылған (төленген) жарғылық капиталды арттыру
Ескерту. 89-бап алып тасталды - ҚР 2003.05.16 № 416 Заңымен.
90-бап. Жарияланған, шығарылған (төленген) жарғылық капиталды азайту
Ескерту. 90-бап алып тасталды - ҚР 2003.05.16 № 416 Заңымен.
91-бап. Бағалы қағаздарды шығару және орналастыру
1. Акционерлiк қоғам шығаратын бағалы қағаздардың түрлерi заң актiлерiнде белгiленедi.
2. Жарияланған акциялар шығарылымын мемлекеттiк тiркеу және оларды орналастыру Қазақстан Республикасының заң актiлерiне сәйкес айқындалады.
3. Акционерлік қоғам, Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайларды қоспағанда, қамтамасыз етілген облигациялар және қамтамасыз етілмеген облигациялар шығаруға құқылы. Акционерлiк қоғам купондық және дисконттық облигациялар шығаруға құқылы. Облигациялар шығарудың шарттары мен тәртiбi бағалы қағаздар рыногы туралы заңдармен белгiленедi.
4. Бағалы қағаздар бойынша табысты төлеудiң нысаны, тәсiлi және тәртiбi акционерлiк қоғамның жарғысымен немесе бағалы қағаздар шығарылымы проспектiсiмен заң актiлерiнде көзделген ерекшелiктер ескерiле отырып белгiленедi.
5. Акционерлiк қоғам қоғамның мынадай акциялары бойынша: 1) өз капиталының терiс мөлшерi кезiнде немесе, егер қоғамның өз
капиталының мөлшерi дивидендтердi оның акциялары бойынша төлеу нәтижесiнде терiс болса;
2) егер ол Қазақстан Республикасының оңалту және банкроттық туралы заңнамасына сәйкес төлем қабiлетсiздiгi немесе дәрменсiздiк белгiлерiне сай келсе не көрсетілген белгiлер қоғамда дивидендтердi оның акциялары бойынша төлеу нәтижесiнде пайда болса, дивидендтер төлеуге құқылы емес.
Қазақстан Республикасының заң актiлерiмен акционерлiк қоғамдарға акциялар бойынша дивидендтер төлеуге тыйым салатын өзге де негiздер көзделуi мүмкiн.
6. Акционерлiк қоғам заңдарда белгiленген тәртiппен туынды бағалы қағаздар, опциондар мен айырбасталатын бағалы қағаздар шығаруға құқылы.
Ескерту. 91-бап жаңа редакцияда - ҚР 1998.07.10. N 282 Заңымен; өзгерістер енгізілді - ҚР 2003.05.16. N 416, 2006.02.20. N 127(қолданысқа енгізілу тәртібін 2 -баптан қараңыз), 2007.02.19. N 230(қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
92-бап. Акционерлiк қоғамды басқару
1. Акционерлiк қоғамның жоғары органы оның акционерлерiнiң жалпы жиналысы болып табылады.
2. Акционерлердiң жалпы жиналысының айрықша құзыретi заң актiлерiмен белгiленедi.
3. Акционерлердiң жалпы жиналысының айрықша құзыретiне жатқызылған мәселелердi шешудi акционерлiк қоғамның өзге органдарына беруге болмайды.
4. Акционерлiк қоғамда директорлар кеңесi құрылады, осы Кодексте, заң актiлерiнде және акционерлiк қоғамның жарғысында акционерлердiң жалпы жиналысының айрықша құзыретiне жатқызылған мәселелердi шешудi қоспағанда, ол қоғамның қызметiне жалпы басшылықты жүзеге асырады. Осы Кодексте, заң актiлерiнде және акционерлiк қоғамның жарғысында директорлар кеңесiнiң айрықша құзыретiне жатқызылған мәселелердi акционерлiк қоғамның атқарушы органының шешуiне беруге болмайды.
5. Акционерлiк қоғамның атқарушы органы алқалық (басқарма) немесе жеке дара (директор, бас директор, президент) болуы мүмкiн. Ол акционерлiк қоғам қызметiне күнделiктi басшылықты жүзеге асырады және директорлар кеңесi мен акционерлердiң жалпы жиналысына есеп бередi.
Қоғам басқа да органдарының заңдармен немесе құрылтай құжаттарымен белгiленген ерекше құзыретiне кiрмейтiн барлық мәселелердi шешу акционерлiк қоғамның атқарушы органының құзыретiне жатады.
6. Акционерлердiң жалпы жиналысының акционерлiк қоғамның жылдық қаржы есебiн тексеру комиссиясының (тексерушiнiң) қорытындысынсыз бекiтуге құқығы жоқ.
Акционерлiк қоғамда заң актiлерiне сәйкес өзге де органдар құрылуы мүмкiн. 6-1. Акционерлік қоғам банкрот деп танылған немесе оңалту рәсімі
қолданылған және заңда белгіленген тәртіппен уақытша не банкроттықты немесе оңалтуды басқарушы тағайындалған жағдайларда, оны басқару бойынша барлық өкілеттіктер тиісінше уақытша не банкроттықты немесе оңалтуды басқарушыға өтеді.
7. Акционерлiк қоғам органдарының құзыретi, сондай-ақ олардың шешiм қабылдау және қоғам атынан әрекет жасау тәртiбi осы Кодекске, заңдарға және құрылтай құжаттарына сәйкес белгiленедi.
8. Алып тасталды - ҚР 2003.05.16 № 416 Заңымен. Ескерту. 92-бапқа өзгерістер енгізілді - ҚР 1997.07.11. № 154, 1998.03.02. №
211, 1998.07.10. № 282, 2003.05.16 № 416, 2011.12.28 № 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 № 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
93-бап. Акционерлiк қоғамды қайта құру және тарату
1. Акционерлiк қоғам акционерлер жиналысының шешiмi бойынша қайта құрылуы немесе таратылуы мүмкiн. Акционерлiк қоғамды қайта құрудың және таратудың өзге негiздерi мен тәртiбi осы Кодекспен және өзге де заң құжаттарымен белгiленедi.
2. Акционерлік қоғам шаруашылық серiктестiгi, өндiрiстiк кооператив немесе "Назарбаев Университеті", "Назарбаев Зияткерлік мектептері" және "Назарбаев Қоры" мәртебесі туралы" Қазақстан Республикасының Заңына сәйкес дербес білім беру ұйымы, сондай-ақ "Инновациялық технологиялар паркі" инновациялық кластері туралы" Қазақстан Республикасының Заңына сәйкес дербес кластерлік қор болып қайта құрылуға құқылы.
Ескерту. 93-баптың 2-тармағы жаңа редакцияда - ҚР 1996.07.15 N 30 Заңымен , өзгерту енгізілді - 2003.05.16 N 416, 2011.01.19 N 395-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 10.06.2014 № 208-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
IV. Еншiлес және тәуелдi акционерлiк қоғам
94-бап. Еншiлес ұйым
1. Шешімдерін жарғылық капиталға қатысудың басым үлесі болуы не олардың арасында жасалған шарт негізінде не өзгеше түрде басқа заңды тұлға ( бұдан әрі – негізгі ұйым) айқындайтын заңды тұлға еншілес ұйым болып табылады.
2. Еншiлес ұйым өзiнiң негiзгi ұйымының борыштары бойынша жауап бермейдi.
Еншiлес ұйыммен жасасқан шарт бойынша (не өзгедей түрде) оған мiндеттi нұсқаулар беруге құқылы негiзгi ұйым онымен осындай нұсқауларды орындау үшiн жасалған мәмiлелер бойынша еншiлес ұйыммен бiрге субсидиарлық жауапты болады.
Негiзгi ұйымның кiнәсiнен еншiлес ұйым банкрот болған жағдайда негiзгi ұйым оның борыштары бойынша субсидиарлық жауапты болады.
Негізгі ұйымның акцияларын осындай ұйымның дауыс беретін акцияларының он пайызынан аспайтын мөлшерде иелену құқығы бар қаржы ұйымдарын қоспағанда, еншілес ұйым негізгі ұйымның акцияларын сатып ала алмайды.
3. Егер заң актiлерiнде өзгеше белгiленбесе, еншiлес ұйымның қатысушылары негiзгi ұйымнан оның кiнәсiнен еншiлес ұйымға келтiрiлген зиянды өтеудi талап етуге құқылы.
4. Еншiлес ұйымдар ережелерiнiң осы бапта көзделмеген ерекшелiктерi заң актiлерiмен айқындалады.
Ескерту. 94-бап жаңа редакцияда - ҚР 1998.07.10. № 282 Заңымен, өзгерістер енгізілді - ҚР 2003.05.16. № 416; 22.04.2015 № 308-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
95-бап. Тәуелдi акционерлiк қоғам
1. Егер акционерлiк қоғамның дауыс берушi акцияларының жиырма проценттен астамы, басқа (қатысушы, басымырақ) заңды тұлғанiкi болса, ол тәуелдi қоғам деп танылады.
2. Алып тасталды - ҚР 2011.12.28 № 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
3. Алып тасталды - ҚР 2011.12.28 № 524-IV (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
4. Бiр-бiрiнiң жарғылық капиталына тәуелдi және өзара қатысатын акционерлiк қоғамдардың осы бапта көзделмеген жағдайының ерекшелiктерi заң актiлерiмен айқындалады.
5. Қатысушы (басымырақ) заңды тұлға заңдарда көзделген тәртіппен акционерлік қоғамның дауыс беретін акцияларының жиырма пайызынан астамын сатып алуы туралы ақпаратты жариялауға міндетті.
Ескерту. 95-бапқа өзгерістер енгізілді - ҚР 1997.07.11. № 154, 1998.07.10. № 282, 2003.05.16. № 416, 2011.12.28 № 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
V. Өндiрiстiк кооператив
96-бап. Өндiрiстiк кооператив туралы жалпы ережелер
1. Азаматтардың бiрлескен кәсiпкерлiк қызмет үшiн мүшелiк негiзде олардың өз еңбегiмен қатысуына және өндiрiстiк кооператив мүшелерiнiң мүлiктiк жарналарын бiрiктiруiне негiзделген ерiктi бiрлестiгi өндiрiстiк кооператив деп танылады.
2. Кооператив мүшелерi екеуден кем болмауға тиiс. 3. Өндiрiстiк кооперативтiң мүшелерi кооператив мiндеттемелерi бойынша
Өндiрiстiк кооператив туралы заңда көзделген мөлшер мен тәртiп бойынша қосымша (жәрдем беру) жауапты болады.
4. Өндiрiстiк кооперативтiң және оның мүшелерiнiң құқықтық жағдайы осы Кодекске, заң құжаттарына сәйкес белгiленедi.
5. "Ауыл шаруашылығы кооперативтері туралы" Қазақстан Республикасының Заңында көзделген жағдайларды қоспағанда, өндірістік кооператив нысанында құрылатын ауыл шаруашылығы кооперативінің құқықтық жағдайы, сондай-ақ оның мүшелерінің құқықтық жағдайы, құқықтары мен міндеттері осы кодекспен және Қазақстан Республикасының өзге де заңдарымен айқындалады.
Ескерту. 96-бапқа өзгерту енгізілді - ҚР 1998.03.02 № 211; 29.10.2015 № 373- V (01.01.2016 бастап қолданысқа енгізіледі) Заңдарымен.
97-бап. Өндiрiстiк кооперативтiң жарғысы
Өндiрiстiк кооперативтiң жарғысында осы Кодекстiң 41-бабының 5- тармағында көрсетiлген мәлiметтерден басқа кооператив мүшелерi жарнасының мөлшерi туралы; кооператив мүшелерiнiң құрамы мен жарна қосу тәртiбi және олардың жарналарды енгiзу жөнiндегi мiндеттемелердi бұзғаны үшiн жауапкершiлiгi туралы; кооператив қызметiне оның мүшелерiнiң еңбекпен қатысу сипаты мен тәртiбi және олардың жеке еңбекпен қатысуы жөнiндегi мiндеттемелердi бұзғаны үшiн жауапкершiлiгi туралы; кооперативтiң таза табысын бөлу тәртiбi туралы; кооперативтi басқару органдарының құрамы мен құзыретi және олардың шешiмдер қабылдау, соның iшiнде шешiмi бiрауыздан немесе бiлiктi көпшiлiк дауыспен қабылданатын мәселелер жөнiндегi шешiмдер қабылдау тәртiбi туралы ережелер болуға тиiс.
Ескерту. 97-бапқа өзгерту енгізілді - Қазақстан Республикасының 1997.07.11. N 154, 1998.03.02. N 211 Заңдарымен.
98-бап. Өндiрiстiк кооперативтiң мүлкi
1. Өндiрiстiк кооперативтiң меншiгiндегi мүлiк, егер кооперативтiң жарғысында өзгеше көзделмесе, оның мүшелерiнiң пайларына олардың жарналарына барабар бөлiнедi.
2. Кооператив таза табысы оның мүшелерi арасында, егер кооператив жарғысында өзгеше тәртiп көзделмесе, олардың еңбекке қатысуына сәйкес бөлiнедi.
3. Өндiрiстiк кооператив таратылған немесе кооператив мүшесi одан шыққан жағдайда кооператив мүшесiнiң өз пайын бөлiп алуға құқығы бар.
Ескерту. 98-бапқа өзгерту енгізілді - Қазақстан Республикасының 1997.07.11. N 154, 1998.03.02. N 211 Заңдарымен.
99-бап. Өндiрiстiк кооперативтi басқару
1. Өндiрiстiк кооперативтiң жоғары органы оның мүшелерiнiң жалпы жиналысы болып табылады.
Өндiрiстiк кооперативте кооперативтiң атқарушы органының қызметiне бақылау жасауды жүзеге асыратын байқаушы кеңес құрылуы мүмкiн. Байқаушы кеңестiң мүшелерi өндiрiстiк кооператив атынан әрекет жасауға құқылы емес.
Кооперативтің басқармасы немесе төрағасы кооперативтiң атқарушы органы болып табылады. Атқарушы орган кооператив қызметiне ағымдағы басшылықты жүзеге асырады және байқаушы кеңес пен кооператив мүшелерiнiң жалпы жиналысына есеп бередi.
Тек кооператив мүшелерi ғана байқаушы кеңес пен өндiрiстiк кооператив басқармасының мүшелерi бола алады. Кооператив мүшесi бiр мезгiлде байқаушы кеңестiң мүшесi және басқарма мүшесi (кооператив төрағасы) бола алмайды.
2. Өндiрiстiк кооперативтi басқару органдарының құзыретi, сондай-ақ олардың шешiм қабылдау және кооператив атынан әрекет жасау тәртiбi заң құжаттары мен құрылтай құжаттарында белгiленедi.
3. Өндiрiстiк кооператив мүшелерiнiң жалпы жиналысының ерекше құзыретiне мыналар жатады:
1) кооператив жарғысын өзгерту; 2) атқарушы органды, тексерушi органдарды және қадағалау кеңесiн құру мен
олардың мүшелерiн керi шақырып алу; 3) кооператив мүшелерiн қабылдау және шығару; 4) кооперативтiң қаржы есебiн бекiту және оның таза табысын бөлу; 5) кооперативтi қайта құру мен таратуды шешу.
Жалпы жиналыстың ерекше құзыретiне заң құжаттары мен құрылтай құжаттарында басқа мәселелердi шешудi де жатқызуы мүмкiн.
Жалпы жиналыстың немесе кооперативтiң қадағалау кеңесiнiң ерекше құзыретiне жатқызылған мәселелердi олар кооперативтiң атқарушы органының шешуiне бере алмайды.
3-1. Өндірістік кооператив банкрот деп танылған немесе оңалту рәсімі қолданылған және заңда белгіленген тәртіппен уақытша не банкроттықты немесе оңалтуды басқарушы тағайындалған жағдайларда, оларды басқару жөніндегі барлық өкілеттіктер тиісінше уақытша не банкроттықты немесе оңалтуды басқарушыға өтеді.
4. Жалпы жиналыс шешiмдер қабылдаған кезде кооператив мүшесiнiң бiр даусы болады.
Ескерту. 99-бапқа өзгерістер енгізілді - ҚР 1997.07.11. N 154; 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
100-бап. Өндiрiстiк кооперативке мүшелiктiң тоқтатылуы
1. Өндiрiстiк кооперативтiң мүшесi кооперативтен өз қалауымен шығуға құқылы. Бұл ретте оған оның жарнасы төленуге немесе берiлуге, сондай-ақ жарғыда көзделген басқа төлемдер төлеу жүзеге асырылуға тиiс.
Кооперативтен шығатын мүшеге жарна мен басқа мүлiк есептi кезең аяқталып, кооперативтiң қаржы есебi бекiтiлгеннен кейiн берiледi.
2. Өндiрiстiк кооперативтiң мүшесi өзiне кооператив жарғысында жүктелген мiндеттердi орындамаған немесе тиiсiнше орындамаған ретте, сондай-ақ заң құжаттары мен құрылтай құжаттарында көзделген басқа да реттерде жалпы жиналыстың шешiмi бойынша кооперативтен шығарылуы мүмкiн.
Өндiрiстiк кооперативтiң мүшелiгiнен шығарылғаны үшiн сотқа шағым жасалуы мүмкiн.
Өндiрiстiк кооперативтiң мүшесi кооперативтен соған ұқсас кооперативке мүше болуына байланысты жалпы жиналыстың шешiмi бойынша шығарылуы мүмкiн.
Өндiрiстiк кооперативтiң одан шығарылған мүшесi өз жарнасын және осы баптың 1-тармағына сәйкес кооператив жарғысында көзделген басқа да төлемдердi алуға құқылы.
3. Өндiрiстiк кооперативтiң мүшесi өз жарнасын немесе оның бiр бөлiгiн, егер осы Кодексте, өзге де заң құжаттары мен құрылтай құжаттарында өзгеше көзделмесе, кооперативтiң басқа мүшесiне беруге құқылы.
Өндiрiстiк кооперативтiң мүшесi болып табылмайтын азаматқа жарнаны ( оның бiр бөлiгiн) беруге, егер заңнамалық актілерде өзгеше көзделмесе, кооперативтiң келiсуiмен ғана рұқсат етiледi. Бұл ретте осы Кодексте көзделген жағдайларды қоспағанда, кооперативтiң басқа мүшелерi мұндай жарнаны (оның бiр бөлiгiн) сатып алуды басым құқықты пайдаланады.
4. Өндiрiстiк кооперативтiң мүшесi қайтыс болған жағдайда оның мұрагерлерi, егер кооперативтiң жарғысында өзгеше көзделмесе, кооператив мүшесi етiп қабылдануы мүмкiн. Қайтыс болған кооператив мүшесiнiң мұрагерi кооперативке кiруден бас тартқанда немесе кооператив мұрагердi қабылдаудан бас тартқанда оған мүлiктегi қайтыс болған кооператив мүшесiнiң пайына бара-бар үлес, сондай-ақ кооперативтiң таза табысының қайтыс болған адамға тиесiлi бөлiгi және кооператив қызметiне қосқан жеке еңбегi үшiн сыйақы төленедi.
5. Өндiрiстiк кооператив мүшесiнiң жарнасынан оның жеке борышын өндiрiп алуға оның мұндай борышты заң құжаттары мен кооперативтiң құрылтай құжаттарында көзделген тәртiп бойынша жабу үшiн басқа мүлкi жетпеген жағдайда ғана жол берiледi.
Ескерту. 100-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211, 2007.08.07. N 321(ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
101-бап. Өндiрiстiк кооперативтi қайта құру және тарату
1. Өндiрiстiк кооператив өз мүшелерiнiң жалпы жиналысының шешiмi бойынша ерiктi түрде қайта құрылуы және таратылуы мүмкiн.
Өндiрiстiк кооперативтi қайта құрудың және таратудың өзге негiздерi мен тәртiбi осы Кодексте және басқа заң құжаттарында белгiленедi.
2. Өндiрiстiк кооператив өз мүшелерiнiң бiрауызды шешiмi бойынша шаруашылық серiктестiгi болып қайта құрылуы мүмкiн.
VI. Мемлекеттiк кәсiпорын
102-бап. Мемлекеттiк кәсiпорын туралы негiзгi ережелер
1. Мемлекеттiк кәсiпорындарға: 1) шаруашылық жүргiзу құқығына негiзделген;
2) оралымды басқару құқығына негiзделген (қазыналық кәсiпорын) кәсiпорындар жатады.
2. Мемлекеттiк кәсiпорынның мүлкi бөлiнбейдi және оны салымдар (үлестер, жарналар) бойынша, соның iшiнде кәсiпорын қызметкерлерiнiң арасында бөлуге болмайды.
3. Мемлекеттiк кәсiпорындардың фирмалық атауында оның мүлкiн меншiктенушi көрсетiлуге тиiс.
РҚАО-ның ескертпесі! 4-тармақтың осы редакциясы ҚР 11.07.2017 № 90-VI Заңына сәйкес (
қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
4. Мемлекеттiк кәсiпорын Қазақстан Республикасының заңдарына сәйкес құрылады, таратылады және қайта ұйымдастырылады.
РҚАО-ның ескертпесі! 5-тармақтың бірінші бөлігінің осы редакциясы ҚР 11.07.2017 № 90-VI Заңына
сәйкес (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
5. Қазақстан Республикасының заңдарында айқындалған тәртіппен тағайындалатын басшы мемлекеттiк кәсiпорынның органы болып табылады.
Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде көзделген жағдайларда мемлекеттік кәсіпорын басшысынан басқа өзге де орган мемлекеттiк кәсiпорынның органы ретінде әрекет ете алады.
5-1. Мемлекеттік кәсіпорын банкрот деп танылған немесе оңалту рәсімі қолданылған және заңда белгіленген тәртіппен уақытша не банкроттықты немесе оңалтуды басқарушы тағайындалған жағдайларда, оны басқару бойынша барлық өкілеттіктер тиісінше уақытша не банкроттықты немесе оңалтуды басқарушыға өтеді.
6. Алынып тасталды - ҚР 1998.03.02 N 211 Заңымен. 7. Мемлекеттiк кәсiпорынның құқылық ережесi осы Кодексте және өзге заң
құжаттарында белгiленедi. Ескерту. 102-бапқа өзгерістер енгізілді - ҚР 1998.03.02 N 211, 2011.03.01 N
414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 11.07.2017 № 90-VI (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) Заңдарымен.
103-бап. Шаруашылық жүргiзу құқығына негiзделген кәсiпорын
1. Құрылтайшы бекiтетiн шаруашылық жүргiзу құқығына негiзделген кәсiпорынның жарғысы оның құрылтай құжаты болып табылады.
2. Шаруашылық жүргiзу құқығына негiзделген кәсiпорын өз мiндеттемелерi бойынша өзiне тиесiлi барлық мүлкiмен жауап бередi.
Шаруашылық жүргiзу құқығына негiзделген кәсiпорын мемлекеттiң мiндеттемелерi бойынша жауапты болмайды.
Осы Кодексте және өзге де заң актiлерiнде көзделген реттердi қоспағанда, мемлекет шаруашылық жүргiзу құқығына негiзделген кәсiпорынның мiндеттемелерi бойынша жауап бермейдi.
Ескерту. 103-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
104-бап. Қазыналық кәсiпорын
1. Жедел басқару құқығымен мемлекет мүлкiне ие болған кәсiпорын қазыналық кәсiпорын деп танылады.
РҚАО-ның ескертпесі! 2-тармақтың осы редакциясы ҚР 11.07.2017 № 90-VI Заңына сәйкес (
қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық
саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
2. Қазыналық кәсiпорын Қазақстан Республикасының заңдарына сәйкес Қазақстан Республикасы Үкiметiнiң немесе жергiлiктi атқарушы органның не аудандық маңызы бар қала, ауыл, кент, ауылдық округ әкімі аппаратының шешiмiмен құрылады.
3. Құрылтайшы бекiткен қазыналық кәсiпорынның жарғысы оның құрылтай құжаты болып табылады.
4. Жедел басқару құқығына негiзделген кәсiпорынның фирмалық атауында кәсiпорынның қазыналық болып табылатындығы көрсетiлуге тиiс.
5. Қазыналық кәсiпорынның шаруашылық қызметi жарғыда көрсетiлген оның мақсаттарымен және мiндеттерiмен белгiленедi.
6. Қазақстан Республикасы немесе әкiмшiлiк-аумақтық бөлiнiс қазыналық кәсiпорынның мiндеттемелерi бойынша жәрдем беру жауаптылығын өз мойнына алады. Шарттық мiндеттемелер бойынша жауапкершiлiк Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде белгiленген тәртiппен туындайды.
Ескерту. 104-бапқа өзгерістер енгізілді - ҚР 1998.12.16 N 320, 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 11.07.2017 № 90-VI (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) Заңдарымен.
VII. Коммерциялық емес ұйымдар
105-бап. Мекеме
1. Басқарушылық, әлеуметтiк-мәдени немесе өзге де коммерциялық емес сипаттағы функцияларды жүзеге асыру үшiн өзінің құрылтайшысы құрған және қаржыландыратын ұйым, егер Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, мекеме деп танылады.
РҚАО-ның ескертпесі! 2-тармақтың осы редакциясы ҚР 11.07.2017 № 90-VI Заңына сәйкес (
қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер,
ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
2. Қазақстан Республикасының Конституциясына және Қазақстан Республикасының заңдарына немесе Қазақстан Республикасы Президентiнiң, Қазақстан Республикасы Үкiметiнiң және облыстардың, республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарының, сондай-ақ аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер әкімдері аппараттарының құқықтық актiлерiне сәйкес мемлекет құратын және егер Қазақстан Республикасының заңдарында қосымша қаржыландыру көздерi белгiленбесе, бюджет немесе Қазақстан Республикасы Ұлттық Банкiнің бюджетi (шығыстар сметасы) есебiнен ғана ұсталатын мекеме мемлекеттiк мекеме болып танылады.
3. Мемлекеттiк мекеменiң шарттық мiндеттемелердi қабылдауы Қазақстан Республикасының Бюджет кодексіне сәйкес жүзеге асырылады.
4. Мекемелердің құқықтық жағдайы осы Кодексте, Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде және Қазақстан Республикасының өзге де заңнамалық актілерінде айқындалады.
Ескерту. 105-бап жаңа редакцияда - ҚР 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен; өзгеріс енгізілді - ҚР 11.07.2017 № 90-VI (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) Заңымен.
106-бап. Қоғамдық бiрлестiктер
1. Қазақстан Республикасында қоғамдық бiрлестiктер болып, егер заңдармен өзгеше көзделмесе, саяси партиялар, кәсiптiк одақтар және азаматтардың заңдарға қайшы келмейтiн, өздерiнiң ортақ мақсаттарына жету үшiн ерiктi негiзде құрған басқа да бiрлестiктерi танылады.
Қаржы нарығындағы қызметті жүзеге асыратын жеке тұлғалардың қоғамдық бiрлестiктерді құру және оларға қатысу ерекшеліктері Қазақстан Республикасының заңнамалық актілерінде белгіленеді.
Қоғамдық бiрлестiктерге қатысушылардың (мүшелерiнiң) осы бiрлестiктерге өздерi берген мүлiкке, соның iшiнде мүшелiк жарналарға құқықтары жоқ. Олар өздерi мүшелерi ретiнде қатысатын қоғамдық бiрлестiктердiң мiндеттерi бойынша жауап бермейдi, ал аталған бiрлестiктер өз мүшелерiнiң мiндеттемелерi бойынша жауап бермейдi.
2 - 6. Алынып тасталды - ҚР 1998.03.02 N 211 Заңымен.
7. Съездiң (конференцияның) немесе жалпы жиналыстың шешiмi бойынша таратылған қоғамдық бiрлестiктiң мүлкi оның жарғысымен көзделген мақсаттарға жұмсалады.
Сот шешiмi бойынша таратылған қоғамдық бiрлестiктiң мүлкi осы Кодекске немесе өзге заң құжаттарына сәйкес пайдаланылады.
8. Қоғамдық бiрлестiктiң құқықтық ережесi осы Кодекске, заң құжаттарына сәйкес белгiленедi.
Ескерту. 106-бапқа өзгеріс енгiзiлдi - ҚР Президентінің 1995.10.05 № 2489 заң күші бар Жарлығымен, ҚР 1997.07.11 № 154, 2-6-тармақтар алып тасталды - 1998.03.02 № 211, 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2012.01.12 № 537-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңдарымен.
107-бап. Қор
1. Азаматтар және (немесе) заңды тұлғалар ерiктi мүлiктiк жарналар негiзiнде құрған, әлеуметтiк, қайырымдылық, мәдени, бiлiм беру және өзге де қоғамға пайдалы мақсаттарды көздейтiн, мүшелiгi болмайтын коммерциялық емес ұйым қор деп танылады.
2. Қор заңды тұлға болып табылады, азаматтық айналымда қордың органдары өкілдік етеді, оның дербес балансы және банк шоты болады.
3. Қорға оның құрылтайшылары берген мүлiк қордың меншiгi болып табылады.
Қор құрылтайшыларының қордың мүлкiне мүлiктiк құқықтары болмайды. 4. Құрылтайшылардың ақшасы, сондай-ақ басқа да мүлкi, ерiктi түрде
жиналған қайырмалдықтар және өзге де заңды түсiмдер қордың қаржы көзi болып табылады.
5. Қорды басқару тәртiбi және оның органдарын құру тәртiбi оның құрылтайшылар бекiтетiн жарғысында айқындалады.
Қордың жарғысында осы Кодекстiң 41-бабының 5-тармағында қамтылатын мәлiметтерден басқа, қордың органдары туралы, қордың лауазымды адамдарын тағайындау және оларды босату тәртiбi, қор таратылған жағдайда оның мүлкiнiң тағдыры туралы нұсқаулар қамтылуға тиiс.
6. Қор өз мүлкiнiң пайдаланылуы туралы есептерiн ресми баспасөз басылымдарында жыл сайын жариялап отыруға мiндеттi.
7. Қор сот шешiмi бойынша мынадай жағдайларда: 1) егер қордың мақсаттарын жүзеге асыру үшiн оның мүлкi жеткiлiксiз болса
және оның қажеттi мүлiктi алу ықтималдығы нақты болмаса;
2) егер қордың мақсаттарына қол жеткізу мүмкiн болмаса, ал қор мақсаттарына қажеттi өзгерiстер жасау мүмкiн болмаса;
3) қор өз қызметiнде жарғыда көзделген мақсаттардан жалтарған жағдайда; 4) заңнамалық актілерде немесе құрылтай құжаттарында көзделген басқа да
жағдайларда таратылуы мүмкін. 8. Қор таратылғаннан кейiн қалған мүлiк оның жарғысында көзделген
мақсаттарға жұмсалады. Ескерту. 107-бап жаңа редакцияда - ҚР 2012.04.27 N 15-V (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен; өзгеріс енгізілді - ҚР 16.11.2015 № 403-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
108-бап. Тұтыну кооперативi
1. Қатысушылардың материалдық және өзге қажеттерiн қанағаттандыру үшiн өз мүшелерiнiң мүлiктiк (үлестiк) жарналарын бiрiктiру арқылы жүзеге асырылатын азаматтардың ерiктi бiрлестiгi тұтыну кооперативi деп танылады.
Заң актiлерiнде көзделген жағдайларда тұтыну кооперативiне заңды тұлғалар кiре алады.
2. Тұтыну кооперативiнiң мүшелерi жыл сайынғы баланс бекiтiлгеннен кейiн пайда болған залалдарды қосымша жарналар төлеу арқылы үш ай iшiнде жабуға мiндеттi. Бұл мiндеттердi орындамаған ретте кооператив несие берушiлердiң талабы бойынша сот тәртiбiмен таратылуы мүмкiн.
Тұтыну кооперативiнiң мүшелерi оның мiндеттемелерi бойынша кооператив мүшелерiнiң қосымша төлемеген бөлiгi шегiнде жәрдем беру жөнiнен ортақ жауапты болады.
3. Тұтыну кооперативiнiң жарғысында, осы Кодекстiң 41-бабының 5- тармағында көрсетiлген мәлiметтерден басқа, кооператив мүшелерi жарналарының мөлшерi туралы; кооператив мүшелерiнiң құрамы мен жарна төлеу тәртiбi және олардың жарна төлеу жөнiндегi мiндеттемелердi бұзғаны үшiн жауапкершiлiгi туралы; кооперативтi басқару органдарының құрамы мен құзыретi және олардың шешiмдер қабылдау, соның iшiнде шешiмi бiрауыздан немесе бiлiктi көпшiлiк дауыспен қабылданатын мәселелер жөнiнде шешiмдер қабылдау тәртiбi туралы; кооператив мүшелерiнiң өздерi шеккен залалдарды жабу тәртiбi туралы ережелер болуға тиiс.
4. Тұтыну кооперативiнiң тапқан табыстарын оның мүшелерi арасында бөлуге болмайды, олар жарғылық мақсаттарға берiледi.
5. Тұтыну кооперативi таратылған немесе кооператив мүшесi одан шыққан жағдайда ол тұтыну кооперативiнiң мүлкiнен өз үлесiн өз жарнасына қарай бөлiп алуға құқылы.
Тұтыну кооперативiнiң мүшесi қайтыс болған жағдайда, егер кооператив жарғысында өзгеше көзделмесе, оның мұрагерлерiнiң кооператив мүшелiгiне қабылдануға бiрiншi кезекте құқығы болады. Соңғы жағдайда кооператив мұрагерлерге тұтыну кооперативiнiң мүлкiнен оның қосқан жарнасына қарай үлесiн төлейдi.
6. Тұтыну кооперативiнiң құқықтық жағдайы, сондай-ақ оның мүшелерiнiң құқықтары мен мiндеттерi осы Кодекске сәйкес заң құжаттарында белгiленедi.
7. Алып тасталды - ҚР 29.10.2015 № 373-V Заңымен (01.01.2016 бастап қолданысқа енгізіледі).
8. Өзара сақтандыру қоғамдары - тұтыну кооперативтерi қызметiнiң ерекшелiктерi Қазақстан Республикасының заңнамалық актiлерiнде айқындалады .
Ескерту. 108-бапқа өзгерту енгізілді - ҚР 1998.03.02 211, 2006.07.05 N 164; 29.10.2015 № 373-V (01.01.2016 бастап қолданысқа енгізіледі) Заңдарымен.
109-бап. Дiни бiрлестiк
1. Рухани қажеттерiн қанағаттандыру үшiн өз мүдделерiнiң ортақтығы негiзiнде, заң құжаттарында белгiленген тәртiп бойынша бiрiккен азаматтардың ерiктi түрдегi бiрлестiгi дiни бiрлестiк деп танылады.
2. Алынып тасталды - 1998.03.02. N 211 Заңымен. 3. Республикадан тыс жерлерде басқару орталықтары бар Қазақстан
Республикасындағы дiни бiрлестiктер әдiлет органдарында тiркеуге жатады. Басқару орталықтарының жарғылары (ережелерi), егер олар Қазақстан Республикасының заңдарына қайшы келмесе, осындай дiни бiрлестiктер жарғыларының (ережелерiнiң) негiзiне алынуы мүмкiн.
4-8. Алынып тасталды - 1998.03.02. N 211 Заңымен. 9. Дiни бiрлестiктер өз қаражаты есебiнен сатып алған немесе өздерi құрған
азаматтар, ұйымдар жылу ретiнде берген немесе мемлекет берген және заң құжаттарына қайшы келмейтiн басқа да негiздер бойынша сатып алынған мүлiкке меншiк құқығы болады.
10. Дiни бiрлестiктерге қатысушылардың (мүшелерiнiң) осы ұйымға өздерi берген мүлiкке, соның iшiнде мүшелiк жарналарға құқықтары сақталмайды. Олар дiни бiрлестiктiң мiндеттемелерi бойынша жауап бермейдi, ал дiни бiрлестiк өз мүшелерiнiң мiндеттемелерi бойынша жауап бермейдi.
11. Дiни бiрлестiктiң құқықтық жағдайының ерекшелiктерi осы Кодекске, Қазақстан Республикасының заң құжаттарына сәйкес белгiленедi.
Ескерту. 109-бапқа өзгерту енгiзiлдi - Қазақстан Республикасы Президентінің 1995.10.05. N 2489 заң күші бар Жарлығымен, 2, 4-8-тармақтар алынып тасталды - Қазақстан Республикасының 1998.03.02. N 211 Заңымен.
110-бап. Жеке кәсiпкерлердiң және (немесе) заңды тұлғалардың қауымдастық (одақ) нысанындағы бiрлестiгi
1. Жеке кәсiпкерлер және (немесе) заңды тұлғалар өздерiнiң кәсiпкерлiк қызметiн үйлестiру, сондай-ақ ортақ мүдделерiн бiлдiру мен қорғау мақсатында қауымдастықтар (одақтар) құра алады.
Заңды тұлғалардың қаржы рыногында қызметтi жүзеге асыратын қауымдастығын (одақтарын) құру және оларға қатысу ерекшелiгi Қазақстан Республикасының заң актiлерiнде белгiленедi.
2. Қоғамдық бiрлестiктер және өзге де коммерциялық емес ұйымдар, соның iшiнде мекемелер осы ұйымдардың қауымдастығына (одақтарына) өз еркiмен бiрiге алады.
3. Қауымдастық (одақ) коммерциялық емес ұйым болып табылады. 4. Қауымдастықтың (одақтың) мүшелерi өз дербестiгiн сақтап қалады.
5. Егер Қазақстан Республикасының заңдарында және құрылтай құжаттарында өзгеше көзделмесе, қауымдастық (одақ) өз мүшелерiнiң мiндеттемелерi бойынша жауап бермейдi. Егер Қазақстан Республикасының заңдарында өзгеше белгіленбесе, қауымдастықтың (одақтың) мүшелерi оның мiндеттемелерi бойынша қауымдастықтың (одақтың) құрылтай құжаттарында көзделген мөлшерде және тәртiппен субсидиарлық жауаптылықта болады.
Ескерту. 110-бапқа өзгерістер енгiзiлдi - ҚР 1998.03.02. N 211, 2003.05.16. N 416, 2007.01.12. N 225; 12.11.2015 № 391-V (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі) Заңдарымен.
Параграф 3. Мемлекет пен әкімшілік-аумақтық бөліністің азаматтық заңдармен реттелетін қатынастарға қатысуы
111-бап. Қазақстан Республикасының азаматтық құқық қатынастарына қатысуы
1. Қазақстан Республикасы азаматтық заңдармен реттелетiн қатынастарға осы қатынастардың өзге қатысушыларымен тең негiздерде кiредi.
2. Қазақстан Республикасының мемлекеттік органдары өздерiнiң осы органдардың мәртебесiн айқындайтын Қазақстан Республикасының заңнамалық актілерінде, ережелерде және өзге де құжаттарда белгiленетiн құзыретi шегiнде Қазақстан Республикасының атынан өз әрекеттерi арқылы мүлiктiк және жеке мүлiктiк емес құқықтар мен мiндеттердi алып, оларды жүзеге асырады, сотта өкiлдiк ете алады.
Қазақстан Республикасының заңнамасында көзделген реттер мен тәртiп бойынша Қазақстан Республикасының арнайы тапсырмасымен оның атынан өзге де мемлекеттiк органдар, заңды тұлғалар мен азаматтар өкiлдiк ете алады.
3. Азаматтық-құқықтық дауларды Қазақстан Республикасының қатысуымен соттар шешедi.
Ескерту. 111-бапқа өзгерту енгiзiлдi - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
112-бап. Әкiмшiлiк-аумақтық бөлiнiстiң азаматтық-құқықтық қатынастарға қатысуы
1. Әкiмшiлiк-аумақтық бөлiнiс азаматтық заңдармен реттелетiн қатынастарда бұл қатынастардың өзге де қатысушыларымен тең негiздерде кiредi.
РҚАО-ның ескертпесі! 2-тармақтың бірінші бөлігінің осы редакциясы ҚР 11.07.2017 № 90-VI Заңына
сәйкес (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
2. Жергiлiктi өкiлдi және атқарушы органдар, сондай-ақ аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер әкімдерінің аппараттары осы органдардың мәртебесiн айқындайтын Қазақстан Республикасының заңдарында, ережелерде немесе өзге де актілерде белгiленген өздерінің құзыретi шеңберiнде әкiмшiлiк-аумақтық бірліктiң атынан өз әрекеттерi арқылы мүлiктiк және жеке мүлiктiк емес құқықтар мен мiндеттердi иелене алады және оларды жүзеге асыра алады, сотта өкiлдiк ете алады.
Заңдарда көзделген реттер мен тәртiп бойынша арнаулы тапсырмамен әкiмшiлiк-аумақтық бөлiнiс атынан жергiлiктi мемлекеттiк органдар, заңды тұлғалар мен азаматтар өкiлдiк ете алады.
3. Заңдарда белгiленген реттерде әкiмшiлiк-аумақтық бөлiнiс азаматтық құқық қатынастарында мемлекет атынан өкiлдiк ете алады.
4. Әкiмшiлiк-аумақтық бөлiнiс пен оның органдарына, егер заңдардан өзгеше жағдай туындамаса, осы Кодекстiң тиiсiнше мемлекет пен оның органдарының азаматтық заңдармен реттелетiн қатынастарға қатысуы туралы ережелерi қолданылады.
5. Азаматтық-құқықтық дауларды әкiмшiлiк-аумақтық бөлiнiстiң қатысуымен соттар шешедi.
Ескерту. 112-бапқа өзгеріс енгізілді - ҚР 11.07.2017 № 90-VI (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) Заңымен.
113-бап. Қазақстан Республикасы мен әкiмшiлiк-аумақтық бөлiнiстiң мiндеттемелерi бойынша ақы өндiрiп алу
1. Қазақстан Республикасы өз мiндеттемелерi бойынша мемлекеттiк қазына мүлкiмен жауап бередi, ал әкiмшiлiк-аумақтық бөлiнiс өз мiндеттемелерi бойынша жергiлiктi қазына мүлкiмен жауап бередi.
2. Қазақстан Республикасы мен әкiмшiлiк-аумақтық бөлiнiс бiр-бiрiнiң мiндеттемелерi бойынша, сондай-ақ азаматтар мен заңды тұлғалардың мiндеттемелерi бойынша жауап бермейдi, ал азаматтар мен заңды тұлғалар осы Кодексте және заң құжаттарында көзделгеннен басқа жағдайларда Қазақстан Республикасы мен әкiмшiлiк-аумақтық бөлiнiс мiндеттемелерi бойынша жауап бермейдi.
114-бап. Мемлекетке және әкiмшiлiк-аумақтық бөлiнiске заңды тұлғалар туралы қалыптарды қолдану
Мемлекетке және әкiмшiлiк-аумақтық бөлiнiстерге заңды тұлғалардың азаматтық заңдармен реттелетiн қатынастарға қатысуын анықтайтын қалыптар, егер заң құжаттарынан өзгеше қалып туындамайтын болса, қолданылады.
3-тарау. Азаматтық құқықтар объектілері Параграф 1. Жалпы ережелер
115-бап. Азаматтық құқық объектiлерiнiң түрлерi
1. Мүлiктiк және жеке мүлiктiк емес игiлiктер мен құқықтар азаматтық құқық объектiлерi бола алады.
2. Мүлiктiк игiлiктер мен құқықтарға (мүлiкке): заттар, ақша, соның iшiнде шетел валютасы, қаржы құралдары, жұмыс, қызмет,
шығармашылық-интеллектуалдық қызметтiң объектiге айналған нәтижелерi, фирмалық атаулар, тауарлық белгiлер және бұйымды дараландырудың өзге де құралдары мүлiктiк құқықтар мен басқа да мүлiк жатады.
2-1. Ақшаға және ақшалай мiндеттемелер бойынша құқықтарға (талаптарға) ( ақша төлеу жөнiндегi талап ету құқықтарына), егер осы Кодексте, Қазақстан Республикасының өзге де заңнамалық актiлерiнде өзгеше көзделмесе немесе мiндеттеме мәнiнен туындамаса, тиiсiнше заттардың немесе мүлiктiк құқықтардың (талаптардың) құқықтық режимi қолданылады.
3. Жеке мүлiктiк емес игiлiктер мен құқықтарға: жеке адамның өмiрi, денсаулығы, қадiр-қасиетi, абырой, игi атақ, iскерлiк бедел, жеке өмiрге қол сұқпаушылық, жеке құпия мен отбасы құпиясы, есiм алу құқығы, автор болу құқығы, шығармаға қол сұқпаушылық құқығы және басқа материалдық емес игiлiктер мен құқықтар жатады.
Ескерту. 115-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 2007.01.12 N 225, 2008.12.10 N 101-IV(2009 жылғы 1 қаңтардан бастап қолданысқа енгізіледі) Заңдарымен.
116-бап. Азаматтық құқық объектiлерiнiң айналым қабiлеттiлiгi
1. Азаматтық құқық объектiлерi, егер ол айналымнан алынып тасталмаса немесе айналымға шек қойылмаса, бiр адамнан екiншi адамға әмбебап құқықты мирасқорлық (мұрагерлiк ету, заңды тұлғаны қайта құру) тәртiбiмен не өзге де әдiспен еркiн берiледi немесе ауысады.
2. Берiлуге рұқсат етiлмейтiн мүліктің түрлерi (айналымнан алынып тасталған) заңдарда тiкелей көрсетiлуге тиiс.
3. Айналымның белгiлi бiр қатысушысына ғана тиесiлi болуы мүмкiн не алынуына немесе берiлуiне арнайы рұқсат бойынша (айналым қабiлеттiгi шектеулi) жол берiлетiн мүліктің түрлерi заңдарда белгiленедi.
4. Жеке мүлiктiк емес игiлiктер мен құқықтар заң құжаттарында белгiленген реттердi қоспағанда, басқа әдiспен берiлмейдi және ауыспайды.
Ескерту. 116-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
117-бап. Жылжымайтын және жылжымалы мүлік
1. Жылжымайтын мүлікке (жылжымайтын заттар) жер учаскелері, ғимараттар , құрылыстар, көпжылдық екпелер және жермен тығыз байланысты өзге мүлік, яғни орнынан олардың мақсатына сай емес шығынсыз ауыстыру мүмкін болмайтын объектілер жатады.
Егер кондоминиум объектісінің құрамындағы пәтерлер және өзге де тұрғын үй-жайлар, сондай-ақ тұрғын емес үй-жайлар дара (бөлек) меншікте болса, олар дербес жылжымайтын мүлік объектілері (түрлері) болып танылады.
2. Мемлекеттік тіркеуге жататын әуе және теңіз кемелері, ішкі суда жүзу кемелері, "өзен-теңіз" жүзу кемелері, ғарыш объектілері, магистральдық құбырлардың желілік бөлігі де жылжымайтын заттарға теңестіріледі. Заңнамалық актілермен жылжымайтын заттарға өзге мүліктер де жатқызылуы мүмкін.
Осы Кодекстің және өзге де заңнамалық актілердің жылжымайтын заттарға байланысты қатынастарды реттейтін нормалары Қазақстан Республикасының заңнамалық актілерінде тікелей көзделген жағдайда, осы тармақта көрсетілген заттарға қолданылады.
3. Ақша мен бағалы қағаздарды қоса алғанда, жылжымайтын затқа жатпайтын мүлік жылжымалы мүлік деп танылады. Заңнамалық актілерде көрсетілген жағдайларды қоспағанда, жылжымалы заттарға құқықтарды тіркеу талап етілмейді.
Ескерту. 117-бап жаңа редакцияда - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен; өзгеріс енгізілді - ҚР 2012.06.22 N 21-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгiзiледi) Заңымен.
118-бап. Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу
1. Жылжымайтын мүлікке құқықтардың (құқықтар ауыртпалығының) туындауы, өзгеруі және тоқтатылуы осы Кодексте және "Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу туралы" Қазақстан Республикасының Заңында көзделген жағдайларда мемлекеттік тіркелуге жатады.
Мемлекеттік тіркеудің жылжымайтын мүлікке байланысты өзге де объектілері "Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу туралы" Қазақстан Республикасының Заңында айқындалады.
2. Егер осы Кодексте және "Жылжымайтын мүлiкке құқықтарды мемлекеттiк тiркеу туралы" Қазақстан Республикасының Заңында өзгеше белгiленбесе, жылжымайтын мүлiкке құқықтар (құқықтар ауыртпалықтары) мемлекеттiк тiркелген кезден бастап туындайды, өзгередi және тоқтатылады. Егер тіркеуден бас тартылмаса, мемлекеттік тіркеу кезі деп өтініш берілген кез, ал электрондық тіркеу кезінде – жүргізілген тіркеу туралы хабарлама жөнелту арқылы тіркеуші органның құқықтардың (құқықтар ауыртпалықтарының) туындауын, өзгеруін немесе тоқтатылуын растаған кезі танылады.
3. Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеуді жүзеге асыратын орган тіркеуге ұсынылған құқық белгілейтін құжатта жазба жасау арқылы жүргізілген тіркеуді құқық иеленушінің өтініші бойынша куәландыруға міндетті. "Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу туралы" Қазақстан Республикасының Заңында көзделген жағдайларда тіркеуді жүзеге асыратын орган жылжымайтын мүлікке меншік құқығы (өзге заттай құқық) туралы куәлік береді.
4. Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу жариялы болып табылады. Тіркеуді жүзеге асыратын орган жылжымайтын мүлікке тіркелген құқықтар туралы ақпаратты кез келген тұлғаға "Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу туралы" Қазақстан Республикасының Заңында белгіленген шектеулерді ескере отырып беруге міндетті.
5. Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеуден бас тарту не тіркеуден негізсіз жалтару жағдайларында сотқа шағым жасалуы мүмкін.
6. Мемлекеттік тіркеу тәртібі осы Кодекске және "Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу туралы" Қазақстан Республикасының Заңына сәйкес белгіленеді.
7. Азаматтық әуе кемелерін, теңіз кемелерін, ішкі суда жүзу кемелерін, " өзен-теңіз" жүзу кемелерін, ғарыш объектілерін жылжымайтын мүлікке теңестірілген объектілер ретінде мемлекеттік тіркеу тәртібі Қазақстан Республикасының әуе кеңістігін пайдалану және авиация қызметі, сауда мақсатында теңізде жүзу, ішкі су көлігі, ғарыш қызметі саласындағы заңдарымен реттеледі.
Ескерту. 118-бап жаңа редакцияда - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), өзгерістер енгізілді - ҚР 2012.01.06 N 529-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік жиырма бір күн өткен соң қолданысқа енгізіледі); 29.12.2014 № 269-V (01.01.2015 бастап қолданысқа енгізіледі) Заңдарымен.
119-бап. Кәсiпорын
1. Кәсiпкерлiк қызметтi жүзеге асыру үшiн пайдаланылатын мүлiктiк кешен құқық объектiсi түрiндегi кәсiпорын деп танылады.
2. Мүлiктiк кешен ретiнде кәсiпорынның құрамына оның қызмет етуiне арналған мүлiктiң барлық түрлерi, соның iшiнде үйлер, ғимараттар, жабдықтар, құрал-саймандар, шикiзат, өнiмдер, жер учаскесiне құқық, талап ету құқықтары, борыштар, сондай-ақ оның қызметiн дараландыратын белгiлерге құқықтар ( фирмалық атау, тауар белгiлерi) және, егер шартта өзгеше көзделмесе, басқа да айрықша құқықтар енедi.
3. Кәсiпорын тұтасымен немесе оның бiр бөлiгi сатып алу-сату, кепiлге, арендаға беру және заттық құқықтарды белгiлеуге, өзгертуге және тоқтатуға байланысты басқа да мәмiлелер объектiсi болуы мүмкiн.
3-1. Кәсіпорынның құрамына мүліктік кешен ретінде кіретін жылжымайтын мүлікке құқықтарды мемлекеттік тіркеудің ерекшеліктері "Жылжымайтын мүлікке құқықтарды мемлекеттік тіркеу туралы" Қазақстан Республикасының Заңында белгіленеді.
4. Мүлiк кешенi ретiндегi кәсiпорын құрамындағы борыштарды берген кезде несие берушiлердiң құқықтарына осы Кодекстiң 48-бабында көзделген тәртiппен кепiлдiк берiледi.
Ескерту. 119-бапқа өзгеріс енгiзiлдi - ҚР 1998.03.02 N 211, 2011.03.25 N 421- IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
120-бап. Бөлiнетiн және бөлiнбейтiн мүлiк
1. Мүлiк бөлiнетiн және бөлiнбейтiн болуы мүмкiн. Бөлiнетiн мүлiк дегенiмiз - бөлу нәтижесiнде бөлiктерi өз мақсатын (мiндетiн)
жоғалтпайтын мүлiк. Бөлiнбейтiн мүлiк дегенiмiз - өзiнiң шаруашылық мақсатын (мiндетiн)
өзгертпей бөлуге болмайтын немесе заң құжатында ұйғарылуына қарай бөлуге жатпайтын мүлiк.
2. Құқық объектiлерi ретiнде бөлiнбейтiн заттардың ерекшелiктерi заңдарда белгiленедi.
121-бап. Күрделi заттар
1. Егер әртектi заттар оны бiрiгу мәнi белгiлейтiн мақсаты бойынша пайдалануға мүмкiндiк беретiн бүтiн бiр затты құрайтын болса, олар бiр зат ( күрделi зат) деп қаралады.
2. Күрделi зат жөнiнде жасалған мәмiленiң күшi, егер шартта өзгеше белгiленбесе оның барлық құрамдас бөлiктерiне қолданылады.
122-бап. Басты зат және керек-жарақ
Керек-жарақ, яғни басты затқа қызмет етуге арналған және ортақ шаруашылық мақсатқа қолданылуы сонымен байланысты болатын зат, егер заңдарда немесе шартта өзгеше белгiленбесе, басты затқа iлесiп жүредi.
123-бап. Жемiстер, азық-түлiк және табыстар
Мүлiктердi пайдалану нәтижесiнде алынған түсiм (жемiстер, өнiмдер, табыстар), егер заңдарда немесе бұл мүлiктi пайдалану туралы шартта өзгеше көзделмесе, осы мүлiктi заңды негiзде пайдаланушы адамға тиесiлi болады.
124-бап. Жануарлар
Заңдарда өзгеше белгiленбегендiктен, жануарларға заттар туралы жалпы ережелер қолданылады.
125-бап. Интеллектуалдық меншiк
1. Осы Кодексте және өзге де заң актiлерiнде белгiленген реттер мен тәртiп бойынша азаматтың немесе заңды тұлғаның шығармашылық интеллектуалдық қызметтiң нәтижелерiне және оларға теңестiрiлген заңды тұлғаны дараландыру құралдарына, жеке немесе заңды тұлғаның өзi орындайтын жұмысының немесе қызметiнiң өнiмдерiне (фирмалық атау, тауар белгiсi, қызмет көрсету белгiсi және т.б.) ерекше құқығы танылады.
2. Шығармашылық интеллектуалдық қызметтiң нәтижелерi мен ерекше құқықтардың (интеллектуалдық меншiктiң) объектiсi болуы мүмкiн даралану құралдарын пайдалануды үшiншi жақтар, Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайларды қоспағанда, құқық иеленушiнiң келiсiмiмен ғана жүзеге асырылады.
Ескерту. 125-бапқа өзгерістер енгiзiлдi - ҚР 1998.03.02 № 211; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
126-бап. Қызметтiк және коммерциялық құпия
1. Үшiншi жаққа белгiсiз болуына байланысты ақпараттың нақты немесе потенциалды коммерциялық құны болып, онымен заңды негiзде еркiн танысуға болмайтын және ақпаратты иеленушi оның құпиялылығын сақтауға шара қолданатын ретте, қызметтiк немесе коммерциялық құпия болып табылатын ақпарат азаматтық заңдармен қорғалады.
2. Мұндай ақпаратты заңсыз әдiстермен алған адамдар сондай-ақ еңбек шартына қарамастан қызметшiлер немесе азаматтық-құқықтық шартқа қарамастан контрагенттер қызметтiк немесе коммерциялық құпияны жария етсе, келтiрiлген залалдың орнын толтыруға мiндеттi.
127-бап. Ақша (валюта)
1. Қазақстан Республикасының ақша бөлiнiсi теңге болып табылады. 2. Теңге Қазақстан Республикасының бүкiл аумағында өз құны бойынша
қабылдануға мiндеттi заңды төлем құралы болып табылады. 3. Қазақстан Республикасы аумағында төлемдер қолма қол төлеп және қолма
қол төлемей есеп айырысу түрiнде жүзеге асырылады. 4. Қазақстан Республикасы аумағында шетел валютасымен есеп айырысудың
реттерi, тәртiбi мен шарттары Қазақстан Республикасының заңдарында белгiленедi.
128-бап. Валюталық қазыналар
1. Валюталық қазыналар деп танылатын мүлiк түрлерi және олар арқылы мәмiлелер жасау тәртiбi заң құжаттарында белгiленедi.
2. Валюталық қазыналарға меншiк құқығы Қазақстан Республикасында жалпы негiздерде қорғалады.
Параграф 1-1. Қаржы құралдары
Ескерту. 3-тарау 1-1параграфпен толықтырылды - Қазақстан Республикасының 2008.12.10 № 101-IV (2009 жылғы 1 қаңтардан бастап қ о л д а н ы с қ а е н г і з і л е д і ) З а ң ы м е н .
128-1-бап. Қаржы құралдары
1. Қаржы құралы – операциялар нәтижесінде бір тұлғада – қаржы активі және басқасында қаржылық міндеттеме немесе үлестік құрал бір мезгілде туындайтын ақша, туынды бағалы қағаздарды қоса алғанда, бағалы қағаздар, туынды қаржы құралдары және басқа да қаржы құралдары.
2. Қаржы активі – басқа тұлғаның ақшасын, үлестік құралын білдіретін кез келген актив, басқа тұлғадан ақшаны немесе өзге де қаржы активін алуға немесе басқа тұлғамен өзі үшін ықтимал тиімді шарттарда қаржы активтерін немесе қаржылық міндеттемелерді алмасуға арналған шарттық құқық немесе есеп айырысу тұлғаның меншікті үлестік құралдарымен жүргізілетін немесе жүргізілуі мүмкін және бұл ретте, тұлғада меншікті үлестік құралдардың ауыспалы санын алу міндеті болатын немесе пайда болуы мүмкін туынды құрал болып табылатын немесе есеп айырысу тіркелген ақша сомасын немесе өзге де қаржы активін тұлғаның меншікті үлестік құралдарының тіркелген санына алмастыру жолына қарағанда кез келген өзге тәсілмен жүргізілетін немесе жүргізілуі мүмкін туынды құрал болып табылатын осындай шарт.
3. Қаржылық міндеттеме – басқа тұлғаның ақшасын немесе өзге де қаржы активін берудің немесе басқа тұлғамен өзі үшін ықтимал тиімсіз шарттарда қаржы активтерін немесе қаржылық міндеттемелерін алмасудың шарттық міндетін білдіретін кез келген міндеттеме, немесе есеп айырысу тұлғаның меншікті үлестік құралдарымен жүргізілетін немесе жүргізілуі мүмкін және бұл ретте, тұлғада меншікті үлестік құралдардың ауыспалы санын беру міндеті болатын немесе беру міндеті пайда болуы мүмкін туынды емес құрал болып табылатын немесе есеп айырысу тіркелген ақша сомасын немесе өзге де қаржы активін тұлғаның меншікті үлестік құралдарының тіркелген санына алмастыру жолына қарағанда кез келген өзге тәсілмен жүргізілетін немесе жүргізілуі мүмкін туынды құрал болып табылатын шарт.
4. Үлестік құрал — ұйымның барлық міндеттемелері шегерілгеннен кейін қалатын оның активтеріндегі қалдық үлесіне құқығын растайтын кез-келген шарт .
Ескерту. 128-1-бапқа өзгеріс енгізілді - ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
128-2-бап. Туынды қаржы құралдары
1. Туынды қаржы құралдары — болашақта осы шарт бойынша есеп айырысуды жүргізуді көздейтін, құны шарттың базалық активінің мөлшеріне ( мөлшердің ауытқуын қоса алғанда) тәуелді шарт.
2. Туынды қаржы құралдарына опциондар, фьючерстер, форвардтар, своптар және осы белгілерге сай келетін басқа да туынды, оның ішінде жоғарыда аталған туынды қаржы құралдарының комбинациясы болып табылатын қаржы құралдары жатады.
3. Тауарлар, тауарлардың стандартталған партиялары, бағалы қағаздар, валюта, индекстер, проценттік ставкалар және нарықтық құны бар басқа да активтер, болашақтағы оқиғалар немесе жағдайлар, туынды қаржы құралдары туынды қаржы құралдарының базалық активтері болып табылады.
128-3-бап. Опцион
1. Опцион — оған сәйкес бір тарап (опцион сатушысы) екінші тарапқа ( опционды сатып алушы) болашақта келісілген жағдайларда пәтуаласқан баға бойынша базалық актив сатып алу немесе сату құқығын сататын туынды қаржы құралы. Опционды сатушы өзіне міндеттемелер алады, ал сатып алушы құқыққа ие болады.
2. Опционды сатушы опционды сатып алушыға сыйлықақы деп аталатын сыйақыға опционды сатады. Опционның келісілген жағдайлары деп мынадай міндетті шарттарды келісу түсініледі: базалық активтің түрі, базалық активтің жалпы құны (опцион жасалатын сома), базалық активтің бағасы (страйк — опционды орындау бағасы), опционның сыйлығы, опционның мерзімі ( опционның қолданылу кезеңі), опционның түрі.
3. Егер опционды сатып алушы өзі сатып алған құқықты іске асырса, онда опцион орындалды деп есептеледі.
128-4-бап. Своп
Своп — оған сәйкес тараптар келісілген шарттармен базалық активтер немесе болашақтағы базалық активтер бойынша төлемдерді айырбастау жөнінде пәтуаласатын туынды қаржы құралы.
128-5-бап. Форвард
1. Форвард — сатып алушы (немесе сатушы) болашақта келісілген шарттарда базалық активті сатып алудың (немесе сатудың) белгіленген мерзімі өткеннен кейін міндеттемені өзіне алатын туынды қаржы құралы.
2. Форвард ұйымдастырылмаған нарықта жасалады.
128-6-бап. Фьючерс
Фьючерс — сатып алушы (немесе сатушы) ұйымдастырылған нарықта белгіленген стандартты шарттарға сәйкес базалық активті сатып алудың (немесе сатудың) белгіленген мерзімі өткеннен кейін міндеттемені өзіне алатын тек ұйымдастырылған нарықта айналымға түсетін туынды қаржы құралы.
Параграф 2. Бағалы қағаздар
129-бап. Бағалы қағаздар
1. Бағалы қағаз - мүлiктiк құқықты куәландыратын белгiлi бiр жазбалар мен басқа да белгiлердiң жиынтығы.
1-1. Бағалы қағаздар борыштық және үлестік болуы мүмкін. Борыштық бағалы қағаз — эмитенттің (борышкердің) осы бағалы қағаздарды
шығару шарттарында борыштың негізгі сомасын төлеу жөніндегі міндеттемесін куәландыратын бағалы қағаздар.
Үлестік бағалы қағаз — Қазақстан Республикасының заңнамасында көзделген жағдайларда мүлік иесінің мүлікке белгіленген үлесіне иелік ету құқығын куәландыратын бағалы қағаз.
2. Бағалы қағаздарға акциялар, облигациялар және бағалы қағаздардың осы Кодекспен және Қазақстан Республикасының өзге де заң актiлерiмен айқындалған өзге де түрлерi жатады.
3. Бағалы қағаздар шығарылым нысаны бойынша: 1) құжатты және құжатсыз; 2) эмиссиялық және эмиссиялық емес; 3) атаулы, ұсынбалы және ордерлiк бағалы қағаздар болып бөлiнедi.
Құжатты бағалы қағаздар - құжатты нысанда (бағалы қағаздың мазмұнын арнаулы техникалық құралдарды пайдаланбай-ақ тiкелей оқу мүмкiндiгi болатын қағаз немесе өзге материалдық жеткiзушi) шығарылған бағалы қағаздар.
Құжатсыз бағалы қағаздар - құжатсыз нысанда (электрондық жазбалар жиынтығы түрiнде) шығарылған бағалы қағаздар.
Эмиссиялық бағалы қағаздар - бiр шығарылым шегiнде осы шығарылым үшiн бiрдей жағдай негiзiнде орналастырылатын және айналымда болатын, бiртектi белгiлерi мен реквизиттерi бар бағалы қағаздар.
Эмиссиялық емес бағалы қағаздар - осы тармақтың төртiншi бөлiгiнде көрсетiлген белгiлерге сәйкес келмейтiн бағалы қағаздар.
Атаулы бағалы қағаз - ол куәландырған құқықтардың онда аталған тұлғаға тиесiлiгiн растайтын бағалы қағаз.
Ұсынбалы бағалы қағаз - ол куәландырған құқықтардың бағалы қағазды ұсынушыға тиесiлiгiн растайтын бағалы қағаз.
Ордерлiк бағалы қағаз - ол куәландырған құқықтардың онда аталған тұлғаға, ал оларға осы құқықтар осы Кодекстiң 132-бабының 3-тармағында көзделген тәртiппен берiлген жағдайда, басқа тұлғаға тиесiлiгiн растайтын бағалы қағаз.
4. Осы Кодекспен және Қазақстан Республикасының өзге де заң актiлерiмен бағалы қағаздардың белгiлi бiр түрiн қайсыбiр нысанда шығару мүмкiндiгiне жол берiлмеуi мүмкiн.
Ескерту. 129-бап жаңа редакцияда - Қазақстан Республикасының 2003.05.16 № 416, өзгерту енгізілді - 2008.12.10 № 101-IV (2009 жылғы 1 қаңтардан бастап қолданысқа енгізіледі) Заңдарымен.
130-бап. Бағалы қағазға құқықтарды растау
1. Бағалы қағаздың өзi құжатты бағалы қағазға құқықты растау болып табылады. Құжатты бағалы қағаздар бағалы қағаздар рыногының кәсiби
қатысушысына сақтауға берiлген жағдайда, оның есебiн жүргiзу мақсатында осы кәсiби қатысушы ашқан шоттан алынған үзiндi көшiрме оған берiлген лицензияға сәйкес немесе Қазақстан Республикасының заңнамалық актілеріне сәйкес уәкiлеттiнiң осы бағалы қағазды осылай сақтауға құқығын растау болып табылады. Құжатты бағалы қағаз бен аталған шоттан берiлген үзiндi көшiрменiң арасында алшақтық болған кезде үзiндi көшiрмеге басымдық берiледi.
2. Бағалы қағаздар рыногының өзiне берiлген лицензияға сәйкес немесе Қазақстан Республикасының заңнамалық актілеріне сәйкес бағалы қағаздармен жасалған мәмiлелердi тiркеуге уәкiлеттi кәсiби қатысушысындағы бағалы қағаздың есебiн жүргiзу мақсатында ашылған шоттан үзiндi көшiрме құжатсыз бағалы қағазға құқықты растау болып табылады.
3. Бағалы қағаздар рыногының кәсiби қатысушыларының бағалы қағаздардың есебiн жүргiзуге арналған шоттарды ашу және жүргiзу тәртiбi, сондай-ақ осындай шоттардан берiлетiн үзiндi көшiрменiң мазмұны мен ресiмделуiне қойылатын талаптар Қазақстан Республикасының заңдарымен айқындалады.
Ескерту. 130-бап жаңа редакцияда - ҚР 2003.05.16 N 416 Заңымен, өзгеріс енгізілді - ҚР 2011.12.28 N 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
131-бап. Бағалы қағазға қойылатын талаптар
1. Бағалы қағаздармен куәландырылатын құқықтардың түрлерi, бағалы қағаздардың мiндеттi реквизиттерi, бағалы қағаз нысанына талаптар және басқа да қажеттi талаптар заң құжаттарымен немесе соларда белгiленген тәртiп бойынша белгiленедi.
2. Бағалы қағаздың мiндеттi реквизиттерi болмауы немесе бағалы қағаздың ол үшiн белгiленген нысанға сәйкес келмеуi оның жарамсыз болуына әкелiп соқтырады.
132-бап. Бағалы қағаз бойынша құқықтар беру
1. Ұсынушыға бағалы қағазбен куәландырылған құқықты басқа адамға беру үшiн бағалы қағазды сол адамға тапсыру жеткiлiктi.
2. Құжаттық нысанда шығарылған атаулы бағалы қағазбен куәландырылған құқықтар талапты (цессияны) басқаға беру үшiн белгiленген тәртiппен берiледi. Бағалы қағаз бойынша құқық берушi адам осы Кодекстiң 347-бабына сәйкес тиісті талаптың орындалмағаны үшiн емес, оның жарамсыздығы үшiн жауаптылықта болады.
2-1. Эмиссиялық бағалы қағаздар бойынша құқықтар беру және солар бойынша құқықтарды растау ерекшелiгi Қазақстан Республикасының заң актiлерiмен айқындалады.
3. Ордерлiк бағалы қағаз бойынша құқықтар бұл қағазға берiлгенін жазу - индоссамент арқылы берiледi. Ордерлiк бағалы қағаз бойынша құқық берушi адам (индоссант), жылжымайтын мүлік ипотекасы туралы Қазақстан Республикасының заң актілерінде белгіленген жағдайларды қоспағанда, құқықтың болуы үшiн ғана емес, оның жүзеге асырылуы үшiн де жауапты болады.
Бағалы қағазда жасалған индоссамент бағалы қағазбен куәландырылған барлық құқықтарды бағалы қағаз бойынша құқықтар берiлетiн адамға - ( индоссантқа) немесе соның бұйрығына ауыстырады. Индоссамент бланкiлiк болуы мүмкiн (орындауға тиiс адам көрсетiлмейдi).
Бағалы қағазбен куәландырылған құқықтарды жүзеге асыру, бұл құқықтарды индоссантқа бермей-ақ (сену индоссаментi) индоссаментке тапсырумен ғана шектелуi мүмкiн. Бұл жағдайда индоссант өкiл ретiнде әрекет жасайды.
Ескерту. 132-бапқа өзгеріс енгiзiлдi - Қазақстан Республикасының 1998.03.02. N 211 Заңымен, 2003.05.16. N 416 Заңымен, 2003.06.03. N 426 Заңымен, 21.06.2013 N 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі) Заңдарымен.
133-бап. Бағалы қағаз бойынша орындау
1. Бағалы қағазды берген адам және оны индоссиялаған барлық адамдар, жылжымайтын мүлік ипотекасы туралы Қазақстан Республикасының заң актілерінде белгіленген жағдайларды қоспағанда, оның заңды иесiнiң алдында бiрге жауап бередi. Бағалы қағаздың заңды иесiнiң сондай қағазбен куәландырылған мiндеттемесiн бағалы қағаз бойынша мiндеттенгендердiң арасынан бiр немесе бiрнеше адамның орындауы туралы талабын қанағаттандырған ретте олар бағалы қағаз бойынша өздерiнен бұрын мiндеттенген өзге адамдарға керi талап қою (регресс) құқығына ие болады.
2. Мiндеттеменiң негiзi болмауын не оның жарамсыздығын сылтауратып бағалы қағазбен куәландырылған мiндеттеменi орындаудан бас тартуға жол берiлмейдi.
3. Бағалы қағаздың жалғандығын немесе жасандылығын байқаған бағалы қағаз иесi өзiне қағазды берген адамға, бағалы қағазбен куәландырылған
мiндеттеменi лайықты орындау туралы және залалдардың орнын толтыру туралы талап қоюға құқылы.
4. Заңсыз иеленушiнiң қолындағы бағалы қағаз бойынша құқықтар жүзеге асырылмауға тиiс.
Ескерту. 133-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 2003.06.03 . N 426 Заңымен.
134-бап. Бағалы қағазды қалпына келтiру
Жоғалған бағалы қағаз бойынша және ордерлiк бағалы қағаз бойынша ұсынушы құқығын қалпына келтiрудi iс жүргiзу заңдарында көзделген тәртiппен сот жүргiзедi.
135-бап. Құжатталмаған бағалы қағаздар
Ескерту. 135-бап алып тасталды - ҚР 2003.05.16 N 416 Заңымен.
136-бап. Облигация
1. Облигация - шығару кезiнде айналыс мерзiмi алдын ала белгiленген, оны шығару шарттарына сәйкес облигацияны шығарған тұлғадан ол бойынша сыйақы алу және оның айналыс мерзiмiнiң аяқталуы бойынша облигацияның ақшалай немесе өзге де мүлiктiк балама түрдегi нақты құнын алу құқығын куәландыратын бағалы қағаз.
2. Облигациялар тек атаулы эмиссиялық бағалы қағаздар ретiнде шығарылады.
3. Қазақстан Республикасының Үкiметi, Қазақстан Республикасының Ұлттық Банкi, коммерциялық ұйымдар облигациялар шығаруға құқылы.
4. Облигациялардың түрлерi және оларды шығару тәртiбi Қазақстан Республикасының заңдарымен белгiленедi.
Ескерту. 136-бап жаңа редакцияда - ҚР 2003.05.16 N 416 Заңымен; өзгеріс енгізілді - 2004.12.20. N 13(01.01.2005 бастап қолданысқа енгізіледі) Заңдарымен.
137-бап. Чек
Ескерту. 137-бап алынып тасталды - ҚР 1997.07.11 N 154 Заңымен.
138-бап. Вексель
Ескерту. 138-бап алынып тасталды - ҚР 1997.07.11 N 154 Заңымен.
139-бап. Акция
1. Акция - акционерлiк қоғам шығаратын және акционерлiк қоғамды басқаруға қатысуға, ол бойынша дивиденд және акционерлiк қоғам таратылған жағдайда оның мүлкiнiң бiр бөлiгiн алуға құқықтарды, сондай-ақ Қазақстан Республикасының заң актiлерiнде көзделген өзге де құқықтарды куәландыратын бағалы қағаз.
2. Акциялар тек атаулы эмиссиялық бағалы қағаздар ретiнде шығарылады. 3. Акциялардың түрлерi Қазақстан Республикасының заң актiлерiмен
белгiленедi. Акцияларды шығару тәртiбi Қазақстан Республикасының бағалы қағаздар
рыногы туралы заңдарымен белгiленедi. 4. Акционерлiк қоғамның ұйымдық-құқықтық нысанында құрылған
коммерциялық емес ұйымдар өз акциялары бойынша дивидендтер төлеудi жүзеге асырмайды.
5. Қазақстан Республикасының заң актiлерiнде өзiнiң әрекетiмен немесе әрекетсiздiгiмен акционерлiк қоғамның мүддесiн бұзған акционерден акцияларды сот шешiмi бойынша сатып алу мүмкiндiгi көзделуі мүмкiн.
Банктерде және банк операцияларының жекелеген түрлерiн жүзеге асыратын ұйымдарда, сондай-ақ сақтандыру (қайта сақтандыру) ұйымдарында Қазақстан Республикасының заң актiлерiмен белгiленген тәртiппен есептелетiн меншiктi капиталдың тepic мөлшерi болған жағдайда, олардың акцияларын мәжбүрлеп сатып алудың мүмкiндiгi мен негiздемесi көзделуi мүмкiн.
Ескерту. 139-бап жаңа редакцияда - 2003.05.16. N 416 Заңымен, 139-бапқа өзгерту енгізілді - 2005.07.08. N 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
139-1-бап. Банктiк депозит сертификаты
Банктiк депозит сертификаты - өз ұстаушысының шығару шарттарында белгiленген айналыс мерзiмi аяқталғаннан кейiн не ол аяқталғанға дейiн номиналды құнын, сондай-ақ шығару шарттарында белгiленген мөлшерде сыйақы алу құқығын растайтын атаулы эмиссиялық емес бағалы қағаз.
Ескерту. 139-1-баппен толықтырылды - Қазақстан Республикасының 2007.01.12. № 225 Заңымен.
140-бап. Банктік сертификат
Ескерту. 140-бап алынып тасталды - ҚР 1997.07.11 N 154 Заңымен.
Параграф 3. Мүліктік емес өзіндік құқықтар
141-бап. Мүлiктiк емес өзiндiк құқықтарды қорғау
1. Мүлiктiк емес өзiндiк құқықтары бұзылған жеке тұлғаның, осы Кодекстiң 9 -бабында көзделген шаралардан басқа, осы Кодекстiң ережелерi бойынша моральдық зардаптарын өтетуге құқығы бар.
2. Мүлiктiк емес өзiндiк құқықтардың қорғалуын азаматтық iс жүргiзу заңдарында көзделген тәртiп бойынша сот жүзеге асырады.
3. Егер осы Кодексте өзгеше көзделмесе құқық бұзған адамның кiнәсiне қарамастан, мүлiктiк емес өзiндiк құқықтар қорғалуға тиiс. Қорғау туралы талап қойған адам өзiнiң мүлiктiк емес өзiндiк құқығының бұзылуын нақты дәлелдеуге тиiс.
4. Мүлiктiк емес өзiндiк құқығы бұзылған адам өз таңдауы бойынша оны бұзушыдан бұзылу зардаптарын жоюды немесе бұзушының есебiнен өз бетiнше қажеттi әрекеттер жасауды не олардың орындалуын үшiншi жаққа тапсыруды талап етуi мүмкiн.
Ескерту. 141-бапқа өзгеріс енгiзiлдi - ҚР 1998.03.02 N 211, 2011.03.25 N 421- IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
142-бап. Мүлiктiк құқықтармен байланысты мүлiктiк емес өзiндiк құқықтар
Мүлiктiк емес өзiндiк және мүлiктiк құқықтар бiр мезгiлде бұзылған жағдайда мүлiктiк емес өзiндiк құқықтардың бұзылғандығы үшiн жәбірленушiге тиесiлi өтем ескерiле отырып, мүлiктiк зиянның орнын толтыру мөлшерi ұлғаяды .
143-бап. Ар-намысты, қадiр-қасиеттi және iскерлiк беделдi қорғау
1. Азамат өзінің ар-намысына, қадір-қасиетіне немесе іскерлік беделіне нұқсан келтіретін мәліметтерді сот тәртібімен теріске шығаруды талап етуге құқылы.
2. Егер азаматтың немесе заңды тұлғаның ар-намысына, қадiр-қасиетiне немесе iскерлiк беделiне кiр келтiретiн мағлұматтар бұқаралық ақпарат құралдары арқылы таратылған болса, олар сол бұқаралық ақпарат құралдарында тегiн терiске шығарылуға тиiс.
Егер аталған мағлұматтар ұйымнан шыққан құжатта болса, бұл құжаттағы мағлұматтардың шындыққа сай келмейтiндiгi туралы тиiстi адамға мiндеттi түрде хабарлана отырып, мұндай құжат алмастырылуға немесе керi сұратып алынуға тиiс.
Өзге реттерде терiске шығару тәртiбiн сот белгiлейдi. 3. Бұқаралық ақпарат құралдары азаматқа немесе заңды тұлғаға қатысты
олардың құқықтарына немесе заңды мүдделерiне нұқсан келтiретiн мағлұматтар жарияласа, олар сол бұқаралық ақпарат құралдарында өз жауаптарын тегiн жариялауға құқылы.
4. Бұқаралық ақпарат құралдарында терiске шығаруды не жауапты жариялау туралы азаматтың немесе заңды тұлғаның талабы, егер бұқаралық ақпарат органы мұндай жарияланымнан бас тартса не бiр айдың iшiнде жарияланым жасамаса, сондай-ақ ол таратылған ретте, сотта қаралады.
5. Егер соттың шешiмi орындалмаса, сот тәртiп бұзушыға бюджеттiң кiрiсiне өндiрiлiп алынатын айыппұл салуға құқылы. Айыппұл азаматтық iс жүргiзу заңдарында белгiленген тәртiп пен мөлшерде салынады. Айыппұл төлеу тәртiп бұзушыны сот шешiмiнде көзделген әрекеттi орындау мiндетiнен босатпайды.
6. Азаматқа қатысты оның ар-намысына, қадір-қасиетіне немесе іскерлік беделіне кір келтіретін мағлұматтар таратылған болса, ол мұндай мағлұматтарды теріске шығарумен бірге олардың таратылуынан өзіне келтірілген залалдың және моральдық зиянның орнын толтыруды талап етуге құқылы.
Моральдық зиянды өтеу туралы талапты қоспағанда, осы баптың азаматтың іскерлік беделін қорғау туралы қағидалары тиісінше заңды тұлғаның іскерлік беделін қорғауға да қолданылады. Заңды тұлғаның іскерлік беделін қорғауға осы Кодексте белгіленген тәртіппен залалдың орнын толтыру туралы қағидалар қолданылады.
7. Егер азаматтың немесе заңды тұлғаның ар-намысына, қадiр-қасиетiне және iскерлiк беделiне кiр келтiретiн мағлұматтарды таратушыны анықтау мүмкiн болмаса, өзi жөнiнде осындай мағлұматтар тараған адам таратылған мағлұматтарды шындыққа сай келмейдi деп тану туралы сотқа жолдануға құқылы.
Ескерту. 143-бапқа өзгеріс енгізілді - ҚР 2009.02.06 N 123-IV (Заңның қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
144-бап. Жеке бастың құпиясын сақтау құқығы
1. Азаматтың жеке бас құпиясын, оның iшiнде хат алысу, телефон арқылы сөйлесу, күнделiктер, естелiктер, жазбалар, iшкi жан сыры, бала асырап алу, туу құпиясын, дәрiгерлiк, адвокаттық құпияны, банктiк салымдар құпиясын сақтауға құқығы бар.
Жеке бас құпиясы заң құжаттарында белгiленген реттерде ғана ашылуы мүмкiн.
2. Күнделiктердi, жазбаларды, естелiктердi және басқа құжаттарды жариялауға - олардың авторының келiсiмiмен, ал хаттарды олардың авторы мен алысушысының келiсiмiмен ғана жариялауға жол берiледi. Олардың қайсыбiрi қайтыс болған жағдайда аталған құжаттар қайтыс болған адамның артында қалған жұбайының және балаларының келiсiмiмен жариялануы мүмкiн.
Ескерту. 144-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1997.07.11 . N 154 Заңымен.
145-бап. Өз бейнесiне құқық
1. Қандай да бiр адамның суреттiк бейнесiн оның келiсiмiнсiз, ал ол қайтыс болған жағдайда - мұрагерлерiнiң келiсiмiнсiз пайдалануға ешкiмнiң де құқығы жоқ.
2. Басқа адам бейнелеген бейнелеу туындыларын (сурет, фотосурет, кинофильм және басқалар) - бейнеленген адамның келiсiмiмен, ал ол қайтыс болғаннан кейiн оның балалары мен артында қалған жұбайының келiсiмiмен ғана жариялауға, қайта шығаруға және таратуға жол берiледi. Егер заң құжаттарында белгiленсе, не бейнеленген адам ақы алып кескiнделген болса, ондай келiсiм талап етiлмейдi.
146-бап. Тұрғын үйге қол сұғылмау құқығы
Заң құжаттарында көзделгеннен басқа реттерде азаматтың тұрғын үйге қол сұққызбау құқығы болады, яғни тұрғын үйiне өзiнiң еркiнен тыс баса-көктеп кiрудiң кез-келген әрекетiн тыюға құқығы бар.
4-тарау. Мәмілелер
147-бап. Мәмiле ұғымы
Азаматтар мен заңды тұлғалардың азаматтық құқықтары мен мiндеттерiн белгiлеуге, өзгертуге немесе тоқтатуға бағытталған әрекеттерi мәмiлелер деп танылады.
148-бап. Бiржақты мәмiлелер мен шарттар
1. Мәмiлелер бiржақты және екi немесе көпжақты (шарттар) болуы мүмкiн. 2. Заңдарға немесе тараптардың келiсiмiне сәйкес жасалуы үшiн бiр тараптың
ерiк бiлдiруi қажет және жеткiлiктi болатын мәмiле бiржақты мәмiле деп есептеледi.
3. Шарт жасасу үшiн екi тараптың (екiжақты мәмiле) не үш немесе одан да көп тараптың (көпжақты мәмiле) келiсiлген ерiк бiлдiруi қажет.
149-бап. Бiржақты мәмiлелердi құқықтық реттеу
1. Бiржақты мәмiле мәмiле жасаған адамға мiндеттер жүктейдi. Ол басқа адамдарға заң құжаттарында белгiленген не сол адамдармен келiсiм болған реттерде ғана мiндеттер жүктей алады.
2. Бiржақты мәмiлелерге тиiсiнше мiндеттемелер туралы және шарттар туралы жалпы ережелер қолданылады, өйткенi бұл заңдарға, мәмiленiң табиғаты мен мәнiне қайшы келмейдi.
150-бап. Шартпен жасалған мәмiлелер
1. Егер тараптар құқықтар мен мiндеттердiң туындауын басталу-басталмауы белгiсiз мән-жайға байланысты етiп қойса, мәмiле кейiнге қалдырылатын шартпен жасалды деп есептеледi.
2. Егер тараптар құқықтар мен мiндеттемелердiң тоқтатылуын басталу-басталмауы белгiсiз мән-жайға байланысты етiп қойса, мәмiле кейiн күшi жойылатын шартпен жасалды деп есептеледi.
3. Егер шарттың басталуы тиiмсiз болатын тарап шарттың басталуына терiс пиғылмен кедергi жасаса, шарт басталды деп танылады.
Егер шарттың басталуы тиiмдi болатын тарап шарттың басталуына терiс пиғылмен ықпал етсе, шарт басталмаған деп танылады.
151-бап. Мәмiленiң нысаны
1. Мәмiлелер ауызша және жазбаша нысанда жасалады (жай немесе нотариалдық).
2. Заңдармен немесе тараптардың келiсiмiмен жазбаша (жай не нотариалдық) немесе өзге белгiлi бiр нысан белгiленбеген мәмiле, атап айтқанда, олар жасалған кезде атқарылатын мәмiлелердiң бәрi ауызша жасалуы мүмкiн. Мұндай мәмiле адамның мiнез-құлқынан оның мәмiле жасау еркi айқын көрiнiп тұрған ретте де жасалған деп саналады.
3. Жетон, билет немесе әдеттегiдей қабылданған өзге де растайтын белгi арқылы расталған мәмiле, егер заңдарда өзгеше белгiленбесе, ауызша түрде жасалған болып табылады.
4. Үндемей қалу заңдарда немесе тараптардың келiсiмiнде көзделген реттерде мәмiле жасауға ерiк бiлдiру деп танылады.
5. Жазбаша түрде жасалған шартты орындау үшiн жасалған мәмiлелер, егер заңдарға қайшы келмесе, тараптардың келiсiмi бойынша ауызша жасалуы мүмкiн .
152-бап. Мәмiленiң жазбаша түрi
1. Мынадай мәмiлелер: 1) егер мәмiлелердiң жекелеген түрлерi үшiн заңдарда өзгеше арнайы
көзделмесе немесе iскерлiк қызмет өрiсiнiң әдеттегi құқықтарынан туындамаса, мәмiлелердi жасау кезiнiң өзiнде орындалатындарынан басқа, кәсiпкерлiк қызмет үрдiсiнде жүзеге асырылатын;
2) мәмiлелердi жасау кезiнiң өзiнде орындалатындарынан басқа, бір жүз айлық есептiк көрсеткiш жоғары сомаға;
3) заңдарда немесе тараптардың келiсiмiнде көзделген өзге де реттерде жазбаша түрде жасалуға тиiс.
1-1. Мәміленің жазбаша нысаны қағаз жеткізгіште немесе электрондық нысанда жасалады.
2. Егер iскерлiк қызмет өрiсiнiң әдеттегi құқықтарынан өзгеше туындамаса, жазбаша түрде жасалған мәмiлеге тараптар немесе олардың өкiлдерi қол қоюға тиiс.
Егер заңдарға немесе мәмiлеге қатысушылардың бiрiнiң талаптарына қайшы келмесе, мәмiле жасау кезiнде қол қоюдың факсимилелiк көшiрме, электрондық цифрлық қолтаңба құралдарын пайдалануға жол берiледi.
3. Екiжақты мәмiлелер әрқайсысына өзiн жасаған тараптар қол қойған құжаттарды алмасу арқылы жасалуы мүмкiн.
Хат, жеделхат, телефонжазба, телетайпжазба, факс, электрондық құжаттар, электрондық хабарлар немесе субъектiлердi және олардың ерiк бiлдiруiнiң
мазмұнын айқындайтын өзге де құжаттар алмасу, егер заңдармен немесе тараптардың келiсiмiмен өзгеше белгiленбесе, жазбаша түрде жасалған мәмiлеге теңестiрiледi.
Қазақстан Республикасының заңдарында және (немесе) тараптардың бірінің талап етуі бойынша қосымша талаптар белгiленуi мүмкiн, оларға мәмiле нысаны, атап айтқанда белгiлі бір нысандағы бланкiде жасау, егер заңды тұлғаның Қазақстан Республикасының заңнамасына сәйкес мөрі болуға тиіс болса, аталған тұлғаның мөрімен бекемдеу сәйкес келуге тиіс.
4. Егер азамат дене кемтарлығы, науқастығы немесе сауатсыздығы салдарынан өзi қол қоя алмаса, оның өтiнiшi бойынша мәмiлеге басқа азамат қол қоя алады. Соңғысының қойған қолын, егер заңдарда өзгеше көзделмесе, нотариат немесе сондай нотариалдық әрекет жасау құқығы бар басқа лауазымды адам, мәмiле жасаушының өзi қол қоя алмаған себептердi көрсете отырып, куәландыруға тиiс.
5. Жазбаша түрде жасалған мәмiленi орындаған тарап екiншi тараптан оның орындалғанын растайтын құжат талап етуге құқылы.
Мәмiлелердi жасау кезiнiң өзiнде орындалатындарынан басқа, ауызша кәсiпкерлiк мәмiленi орындаған тараптың да осындай құқығы бар.
Ескерту. 152-бапқа өзгерістер енгiзiлдi - ҚР 1998.03.02. N 211, 2003.01.08 N 372; 29.12.2014 № 269-V (01.01.2015 бастап қолданысқа енгізіледі); 24.11.2015 № 419-V (01.01.2016 бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.05.2018 № 156-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен. 153-бап. Мәмiленiң жазбаша нысанын сақтамау салдары
1. Мәмiленiң жай жазбаша нысанын сақтамау дау болған жағдайда тараптарды мәмiленiң жасалғанын, мазмұнын немесе орындалғанын куәгерлiк айғақтармен растау құқығынан айырады. Алайда, тараптар мәмiленiң жасалғанын, мазмұнын немесе орындалғанын жазбаша немесе өзге де, куәгерлiк айғақтардан басқа, дәлелдермен растауға құқылы.
2. Қазақстан Республикасының заңдарында немесе тараптардың келiсiмiнде тiкелей көрсетiлген жағдайларда мәмiленiң жай жазбаша нысаны сақталмаған кезде мәміле маңызсыз болып саналады.
3. Жай жазбаша нысан сақталмаған кезде сыртқы экономикалық мәмiле маңызсыз болып саналады.
Ескерту. 153-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
154-бап. Мәмiленi нотариаттың куәландыруы
1. Қазақстан Республикасының заңдарында немесе тараптардың келiсiмiнде белгiленген жағдайларда жазбаша мәмiлелер оларды нотариат куәландырғаннан кейiн ғана жасалды деп есептеледі.
Осы баптың 2-тармағында белгіленген жағдайларды қоспағанда, нотариаттық куәландыру туралы талаптарды сақтамау осы Кодекстiң 157-1-бабының 3- тармағында көзделген салдарлармен мәмiленiң маңызсыздығына алып келеді.
2. Егер нотариаттың куәландыруын талап ететiн мәмiленi тараптар немесе тараптардың бiрi iс жүзiнде орындаған болса, ол өзiнiң мазмұны жағынан заңдарға қайшы келмесе және үшiншi жақтардың құқықтарын бұзбаса, сот мүдделi тараптың арызы бойынша мәмiленi жарамды деп тануға құқылы. Бұл ретте мәмiленi кейiннен нотариаттың куәландыруы талап етiлмейдi.
Ескерту. 154-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
155-бап. Мәмілелерді тіркеу
1. Егер заңнамалық актілерде өзгеше көзделмесе, заңнамалық актілерге сәйкес міндетті мемлекеттік немесе өзге де тіркелуге тиіс мәмілелер тіркелген кезден бастап жасалған болып есептеледі.
Тіркеуден бас тарту жазбаша түрде ресімделуге тиіс және заңнама талаптарының бұзылуына сілтеме жасалғанда ғана мүмкін болады.
2. Егер тараптардың бірі мәмілені мемлекеттік тіркеуден жалтарса, сот екінші тараптың талап етуімен мәміле бойынша құқықтарды тіркеу туралы шешім шығаруға құқылы. Мұндай жағдайда мәміле сот шешіміне сәйкес тіркеледі.
Ескерту. 155-бап жаңа редакцияда - ҚР 2007.07.26 № 311 Заңымен, өзгеріс енгізілді - ҚР 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
156-бап. Биржалық мәмiлелер
1. Биржалық мәмiлелер - нысаны биржадағы айналысқа жiберiлген мүлiк болып табылатын және тиiстi биржалар (тауар, қор және басқа) туралы Қазақстан Республикасының заңдары мен биржалық сауда ережелерiне сәйкес онымен сауда-саттық жүргiзуге қатысатындармен жасалатын мәмiлелер.
2. Биржалық мәмiлелер осы мәмiлелердiң жасалғандығын растау үшiн биржа беретiн құжаттармен ресiмделедi.
3. Егер заңдардан, тараптардың келiсiмiнен немесе мәмiленiң мәнiнен өзге жағдайлар туындамаса, биржалық мәмiлелерге олардың мазмұнына қарай тиiстi шарт (сатып алу-сату, комиссиялар және басқалар) туралы ережелер қолданылады.
4. Заңнамада немесе биржалық сауда ережелерiнде, "Қылмыстық жолмен алынған кірістерді заңдастыруға (жылыстатуға) және терроризмді қаржыландыруға қарсы іс-қимыл туралы" Қазақстан Республикасының Заңына сәйкес қаржы мониторингі жөніндегі уәкілетті органға ұсынылатын мәліметтерден басқа, тараптардың коммерциялық құпиясы болып табылатын және олардың келiсiмiнсiз жария етуге жатпайтын биржалық мәмiлелердiң талаптары көзделуi мүмкiн.
5. Биржалық мәмiлелер жасасуға байланысты даулар тиiстi биржа жанындағы биржа төрелiгiнде қаралады, Қазақстан Республикасының заңында көзделген жағдайларда сот оның шешiмiнің күшін жоюы мүмкiн.
6. Алынып тасталды - ҚР 1998.03.02 № 211 Заңымен. Ескерту. 156-бапқа өзгерістер енгiзiлдi - ҚР 1998.03.02 № 211, 2003.05.16 №
416, 2009.08.28 № 192-IV (2010.03.08 бастап қолданысқа енгізіледі), 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.06.21 № 19-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 2014.06.10 № 206-V ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 08.04.2016 № 489-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен. 157-бап. Дауланатын және маңызсыз мәмілелер
1. Мәміле сот оны осындай деп (дауланатын мәміле) тануына байланысты осы Кодексте немесе өзге де заңнамалық актілерде белгіленген негіздер бойынша не осылай тануына (маңызсыз мәміле) қарамастан, заңнамалық актілерде тікелей көзделген негіздер бойынша жарамсыз болады.
Егер мәміленің маңызсыздығы заңнамалық актілерде көзделмесе, ол даулы мәмілеге жатады.
Мәміленің маңызсыздығы туралы дау туындаған жағдайда, оның жарамсыздығын сот белгілейді.
2. Мәміленің нысанына, мазмұнына және мәмілеге қатысушыларға, сондай-ақ олардың осы Кодексте немесе өзге де заңнамалық актілерде белгіленген негіздер бойынша ерік білдіру бостандығына қойылатын талаптар бұзылған кезде мәміле жарамсыз деп танылады.
3. Мүдделі тұлғалар, тиісті мемлекеттік орган не прокурор мәмілені жарамсыз деп тану туралы талап қоюы мүмкін.
Көрсетілген мәмілені жасау нәтижесінде құқықтары мен заңды мүдделері бұзылған немесе бұзылуы мүмкін тұлға мүдделі тұлға болып табылады.
Мәмілені жарамсыз деп тануға талап қою құқығы бар тұлғалардың тізбесі осы Кодексте және (немесе) өзге де заңнамалық актілерде белгіленеді.
Ескерту. 157-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі). 157-1-бап. Мәміленің жарамсыздығының салдарлары туралы жалпы ережелер
1. Маңызсыз мәміленің жарамсыздығы салдарларын қолдану туралы талапты мәміле тарапы не осы Кодекстің 157-бабының 3-тармағында белгіленген тұлғалар қоюға құқылы.
2. Жарамсыздығына байланысты және жасалған кезінен бастап жарамсыз болған мәмiлелерді қоспағанда, егер осы Кодексте, Қазақстан Республикасының заңнамалық актiлерінде өзгеше көзделмесе немесе мәмiленiң мәнiнен немесе мазмұнынан өзгеше туындамаса, жарамсыз мәмiле заңдық салдарларға алып келмейді.
3. Егер мәміле жарамсыздығының өзге де салдарлары осы Кодексте немесе Қазақстан Республикасының өзге де заңнамалық актілерінде көзделмесе, мәміле жарамсыз болған кезде тараптардың әрқайсысы – екінші тарапқа мәміле бойынша алынғанның барлығын қайтарып беруге, ал заттай қайтарып беру мүмкін болмағанда (оның ішінде, алынғандар мүлікті пайдалану, орындалған жұмыс немесе көрсетілген қызмет түрінде болғанда) қайтарылуға жататын мүліктің құнын, мүлікті пайдаланудың, орындалған жұмыстардың немесе көрсетілген қызметтердің құнын ақшалай өтеуге міндетті.
4. Сот мәмiленiң жарамсыздығын тудырған әрекеттердi жасауға кiнәлi тараптан екiншi тараптың пайдасына мәмiленi жарамсыз деп тануға байланысты оған келтірілген залалды өндiрiп алуы мүмкiн.
5. Егер мәмiле қылмыстық мақсатқа жетуге бағытталса, оның құқыққа қайшылығы сот үкімімен (қаулысымен) белгіленсе, онда екi тараптың да теріс пиғылы болған кезде олардың мәмiле бойынша алғандарының немесе алуға арналғандардың барлығы соттың шешiмi немесе үкiмi бойынша тәркiленуге жатады. Мұндай мәмiленi бiр тарап орындаған жағдайда оның екiншi тараптан алғандарының барлығы және одан мәмiле бойынша бiрiншi тарапқа тиесiлiнiң барлығы тәркiленуге жатады. Егер тараптардың бір де біреуі орындауға кiрiспеген болса, мәмiледе орындалуы көзделгеннiң барлығы тәркiленуге жатады .
6. Қылмыстық мақсатқа жетуге бағытталған теріс пиғыл тараптардың бiрiнде ғана болған, оның құқыққа қайшылығы сот үкімімен (қаулысымен) белгіленген жағдайда, оның мәмiле бойынша алғандарының барлығы екiншi тарапқа
қайтарылуға жатады, ал соңғысының алғаны не оған мәмiле бойынша тиесiлiсi тәркiленуге жатады.
7. Нақты мән-жайларды ескере отырып, сот осы баптың 5 және 6- тармақтарында көзделген салдарларды, жарамсыз мәмiле бойынша алынған не алынуға тиiс мүлiктi тәркiлеу бөлiгiнде iшiнара не толық қолданбауға құқылы. Бұл бөлiкте осы баптың 3-тармағында көзделген салдарлар басталады.
8. Сот мәмiленi жарамсыз деп тани отырып, нақты мән-жайларды ескеріп, оны одан әрi орындауға тыйым салумен шектелуге құқылы.
Ескерту. 4-тарау 157-1-баппен толықтырылды - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі). 158-бап. Мазмұны Қазақстан Республикасы заңнамасының талаптарына сәйкес келмейтiн мәмiленiң жарамсыздығы
1. Мазмұны заңнама талаптарына сәйкес келмейтін мәміле, сондай-ақ құқықтық тәртіп негіздеріне көрінеу қайшы келетін мақсатпен жасалған мәміле, егер осы Кодексте және Қазақстан Республикасының өзге де заңнамалық актілерінде өзгеше көзделмесе, дауланатын мәміле болып табылады және сот оны жарамсыз деп тануы мүмкін.
2. Қылмыстық мақсатқа жетуге бағытталған, оның құқыққа қайшылығы сот үкімімен (қаулысымен) белгіленген мәміле маңызсыз болады.
3. Қазақстан Республикасы заңнамасының, заңды тұлға жарғысының талаптарын не оның органдарының құзыретiн бұзатын мәмiленi әдейі жасасқан адам, егер мұндай талап пайдакүнемдiк уәждерден немесе жауаптылықтан жалтару ниетiнен туындаса, мәмiленi жарамсыз деп тануды талап етуге құқылы емес.
4. Егер мәмiлеге қатысушылардың бiрi оны мiндеттемені орындаудан немесе үшiншi тұлға не мемлекет алдындағы жауаптылықтан жалтару ниетiмен жасасқан жағдайда, ал мәмiленiң басқа қатысушысы бұл ниет туралы бiлген болса немесе бiлуге тиiс болса, мүдделi тұлға (мемлекет) мәмiленi жарамсыз деп тануды талап етуге құқылы.
Ескерту. 158-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
159-бап. Мәмiлелер жарамсыздығының негiздерi
1. Қажеттi рұқсатты алмай не рұқсаттың қолданылу мерзiмi аяқталғаннан кейiн жасалған мәмiле маңызсыз болады.
2. Жосықсыз бәсеке мақсатын көздейтiн немесе iскерлiк әдеп талаптарын бұзатын мәмiлені сот жарамсыз деп тануы мүмкін.
3. Осы Кодекстің 23-бабында көзделген мәмілелерден басқа, он төрт жасқа толмаған адам (жас бала) жасасқан мәміле маңызсыз болады.
4. Он төрт жасқа толған кәмелетке толмаған адамның заңды өкілдерінің келісімінсіз жасаған мәмілесін, заң бойынша оның өзі дербес жасауға құқығы бар мәмілелерді қоспағанда, сот заңды өкілдерінің талабы бойынша жарамсыз деп тануы мүмкін. Осы баптың қағидалары осы Кодекске сәйкес әрекетке толық қабілетті деп танылатын (осы Кодекстің 17-бабының 2-тармағы, 22-1-бабы) кәмелетке толмағандардың мәмілелеріне қолданылмайды.
5. Есуастық немесе ақыл-есi кем болуы салдарынан әрекет қабiлеттiгi жоқ деп танылған адам жасасқан мәмiле маңызсыз болады. Кейiннен әрекет қабiлеттiлігi жоқ деп танылған азамат жасасқан мәмiле (осы Кодекстiң 26-бабы), егер мәмiленi жасау кезiнiң өзiнде-ақ бұл азаматтың психикасының бұзылуы жағдайында болғаны дәлелденсе, дауланатын мәміле болып табылады және оның қорғаншысының талап қоюы бойынша сот мәмiленi маңызсыз деп тануы мүмкiн.
6. Сот әрекет қабiлеттiлiгiн шектеген адам жасасқан мәмiленi сот оның қамқоршысының талап етуi бойынша жарамсыз деп тануы мүмкiн.
7. Әрекет қабiлеттiлiгi болғанымен, мәмiле жасаған кезде өз әрекеттерiнiң мәнiн түсiне алмайтын немесе өзiнiң не iстегенiн бiлмейтiн жағдайда болған азамат жасасқан мәмiленi сот сол азаматтың талабы бойынша, ал егер тiрi кезiнде талап етуге азаматтың мүмкiндiгi болмаса, азамат қайтыс болғаннан кейiн басқа мүдделi адамдардың талабы бойынша жарамсыз деп тануы мүмкiн.
8. Елеулi мәнi бар жаңылысу салдарынан жасалған мәмiленi сот жаңылысу әсерiмен әрекет еткен тараптың талабы бойынша жарамсыз деп тануы мүмкiн. Мәмiленiң табиғатына, ұқсастығына немесе оны өз мақсатына пайдалану мүмкiндiгiн айтарлықтай төмендететiн мәнiнiң сапасына қатысты жаңылысудың елеулi мәнi болады. Дәлелдердегi жаңылысу кейiнге қалдыру немесе күшiн жою шарты ретiнде, мәмiленiң мазмұнына осындай дәлелдi енгiзген кезде ғана мәмiле жарамсыздығының негiзi бола алады (осы Кодекстiң 150-бабы).
Егер жаңылысу мәмiлеге қатысушының өрескел бейқамдығының салдары болса, не оны кәсiпкерлiк тәуекел билеген болса, сот нақты жағдайларды және мәмiлеге қатысушы екiншi жақтың мүдделерiн ескере отырып, мәмiленi жарамсыз деп тану туралы талаптан бас тартуға құқылы.
9. Алдау, зорлық, қорқыту ықпалымен жасалған мәмiленi, сондай-ақ басқа тарап пайдаланған жағдайларға қарағанда адам өзi үшiн мүлде тиiмсiз ауыр мән-жайлардың салдарынан жасауға мәжбүр болған мәмiленi (кiрiптарлық мәмiле) сот жәбiрленушiнiң талабы бойынша жарамсыз деп тануы мүмкiн.
10. Бiр тарап өкiлiнiң екiншi тараппен зұлымдық ниетте келiсуi нәтижесiнде жасалған мәмiленi сот жәбiрленушi тараптың талабы бойынша жарамсыз деп тануы мүмкiн. Жәбiрленушi тарап шеккен залалды жәрдем беру тәртiбiмен өтеу ( осы Кодекстiң 9-бабының 4-тармағы) терiс пиғылды өкiлге жүктелуi мүмкiн.
11. Заңды тұлғаның осы Кодексте, Қазақстан Республикасының өзге де заңнамалық актiлерiнде немесе құрылтай құжаттарында нақты шектелген қызмет мақсаттарына қайшы келетiн етiп, не оның органының жарғылық құзыретiн бұза отырып жасасқан мәмiлесi, егер мәмiледегi басқа тараптың мұндай бұзушылықтар туралы бiлгенi немесе бiлуге тиiс болғаны дәлелденсе, заңды тұлғаның немесе оның құрылтайшысының (қатысушысының) мүлiк иесiнiң талап қоюы бойынша жарамсыз деп танылуы мүмкiн.
12. Осы баптың 3, 5-тармақтарында көзделген мәмiлелер жас балалардың немесе әрекет қабiлеттiлiгi жоқ адамдардың заңды өкілдерінің талабы бойынша, егер олар аталған адамдардың пайдасына жасалған болса, сот шешiмiмен жарамды деп танылуы мүмкiн.
Ескерту. 159-бапқа өзгерістер енгiзiлдi - ҚР 1998.03.02 N 211, 2007.01.12 N 225, 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 16.05.2014 № 203-V (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
160-бап. Жалған немесе қулықпен жасалған мәмiлелер
1. Оған тиісті құқықтық салдарлар жасау ниетінсіз, тек алдау үшін жасалған мәмілені (жалған мәмілені) сот мүдделі тұлғаның, тиісті мемлекеттік органның немесе прокурордың талап арызы бойынша жарамсыз деп таниды.
2. Егер мәмiле екiншi бiр мәмiленi (қулықпен) бүркемелеу мақсатымен жасалса, тараптар шын мәнiнде ойлаған мәмiлеге қатысты ережелер қолданылады.
Ескерту. 160-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
161-бап. Мәмiленiң бiр бөлiгi жарамсыздығының салдары
Егер мәмiленi оның жарамсыз бөлiгiн енгiзбей-ақ жасауға болар едi деп ойлау мүмкiн болса, мәмiленiң бiр бөлiгiнiң жарамсыздығы оның басқа бөлiктерiнiң жарамсыз болуына әкелiп соқтырмайды.
162-бап. Жарамсыз мәмiлелер бойынша талап қою мерзiмдерi
1. Алып тасталды- ҚР 1998.03.02 N 211 Заңымен. 2. Осы Кодекстiң 159-бабының 9 және 10-тармақтарында көзделген негiздер
бойынша мәмiленiң жарамсыздығына байланысты даулар бойынша талап қою мерзiмi қорлық немесе қорқыту ықпалымен мәмiле жасалып, сол зорлық немесе қорқыту тоқтатылған күннен бастап не талап қоюшы мәмiленi жарамсыз деп тануға негiз болып табылатын өзге де мән-жайларды бiлген немесе бiлуге тиiс болған күннен бастап бiр жыл болады.
Ескерту. 162-бапқа өзгеріс енгізілді - ҚР 1998.03.02 N 211 Заңымен.
5-тарау. Өкілдік және сенімхат
163-бап. Өкiлдiк
1. Басқа адамның (өкiлдiк берушiнiң) атынан бiр адамның (өкiлдiң) сенiмхатқа, заңдарға, сот шешiмiне не әкiмшiлiк құжатқа негiзделген өкiлеттiгi күшiмен жасаған мәмiлесi өкiлдiк берушiнiң азаматтық құқықтары мен мiндеттерiн тiкелей туғызады, өзгертедi және тоқтатады.
Өкiлеттiк өкiлдiң (бөлшек сауда жүйесiндегi сатушы, кассир және т.б.) әрекет жасаған жағдайынан да көрiнуi мүмкiн.
2. Өкiл жасаған мәмiле бойынша тiкелей өкiлдiк берушiде құқықтар мен мiндеттер пайда болады.
3. Өкіл жеке өзіне қатысты да, сонымен бірге өзі өкілі болып табылатын басқа адамға қатысты да өкілдік берушінің атынан мәмілелер жасай алмайды.
Бұл қағида коммерциялық өкілдікке қолданылмайды. 4. Басқалардың мүдделерi үшiн болса да өз атынан әрекет ететiн адамдар (
коммерциялық делдалдар, мұрагерлiк кезiнде өсиеттi орындау тапсырылған адамдар және т.б.), сондай-ақ болашақта жасалуы мүмкiн мәмiлелерге қатысты келiссөз жүргiзуге уәкiлдiк берiлген адамдар өкiлдер болмайды.
5. Сипаты жөнiнен тек жеке өзi ғана жасауға болатын мәмiленi, сондай-ақ заң құжаттарында көзделген реттердегi басқа да мәмiлелердi өкiл арқылы жасауға жол берiлмейдi.
Ескерту. 163-бапқа өзгеріс енгiзiлдi - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
164-бап. Әрекет қабiлеттiгi жоқ адамдар үшiн өкiлдiк
Әрекет қабiлеттiгi жоқ азаматтардың атынан мәмiлелердi олардың заңды өкiлдерi жасайды.
Ескерту. 164-бапқа өзгеріс енгiзiлдi - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
165-бап. Өкiлеттiгi жоқ өкiлдiк
Мәмiле жасауға уәкiлдiк берiлмеген адамның басқа адам атынан немесе өкiлеттiгiн асыра пайдаланып жасаған мәмiлесi өкiлдiк берушi осы мәмiленi кейiннен мақұлдаған ретте ғана ол үшiн азаматтық құқықтар мен мiндеттердi туғызады, өзгертедi және тоқтатады.
Өкiлдiк берушiнiң кейiннен мақұлдауы мәмiленi оның жасалған кезiнен бастап жарамды етедi.
166-бап. Коммерциялық өкiлдiк
1. Кәсiпкерлер шарт жасасқан кезде олардың атынан үнемi және дербес өкiлдiк етушi адам (коммерциялық өкiл) өкiлдiң өкiлеттiгi көрсетiлетiн жазбаша шарт негiзiнде, ал ол көрсетiлмеген жағдайда - сенiмхат негiзiнде де әрекет жасайды.
2. Коммерциялық өкiл сонымен бiр мезгiлде өзiнiң қатысуымен жасалатын шарттың түрлi тараптарының мүдделерiн бiлдiре алады. Бұл орайда ол өзiне берiлген тапсырмаларды кәдiмгi кәсiпкердiң ыждағаттылығымен орындауға мiндеттi.
3. Коммерциялық өкiл келiсiлген сыйақыны және өзi тапсырмаларды орындаған кезде жұмсаған шығындарын, егер өздерiнiң арасындағы келiсiмде өзгеше көзделмесе, шарт тараптарынан тең мөлшерде төлеудi талап етуге құқылы.
4. Коммерциялық өкiл өзiне белгiлi болған сауда мәмiлелерi туралы мәлiметтердi өзiне берiлген тапсырманы орындағаннан кейiн де құпия сақтауға мiндеттi.
5. Кәсiпкерлiк қызметтiң жекелеген салаларындағы коммерциялық өкiлдiктiң ерекшелiктерi заңмен белгiленедi.
167-бап. Сенiмхат
1. Бiр адамның (сенiм бiлдiрушiнiң) өз атынан өкiлдiк ету үшiн екiншi адамға (сенiм бiлдiрген) берген жазбаша уәкiлдiгi сенiмхат деп танылады.
2. Мүлiкке билiк жасауға және нотариаттың куәландыруын талап ететiн мәмiлелер жасауға берiлетiн сенiмхатты, егер заң құжаттарында өзгеше белгiленбесе, нотариат куәландыруға тиiс.
3. Нотариат куәландырған сенiмхаттарға: 1) госпитальдарда, санаторийлер мен басқа әскери-емдеу мекемелерiнде
емделiп жатқан әскери қызметшiлердiң және өзге де адамдардың осы госпитальдардың, санаторийлер мен басқа әскери-емдеу мекемелерiнiң бастықтары, медицина бөлiмi жөнiндегi орынбасарлары, аға және кезекшi дәрiгерлерi куәландырған сенiмхаттар;
2) мемлекеттiк нотариалдық кеңселер мен басқа да нотариалдық әрекет жасайтын органдары жоқ әскери бөлiмдер, құрамалар, мекемелер және әскери-оқу орындары орналасқан мекендердегi осы бөлiмдердiң, құрамалардың, мекемелердiң, оқу орындарының командирлерi (бастықтары) куәландырған әскери қызметшiлердiң сенiмхаттары, сондай-ақ жұмысшылар мен қызметшiлердiң, олардың отбасы мүшелерi мен әскери қызметшiлер отбасы мүшелерiнiң сенiмхаттары;
3) бас бостандығынан айыру орындарындағы адамдардың бас бостандығынан айыру орындарының бастықтары куәландырған сенiмхаттары;
4) халықты әлеуметтiк қорғау мекемелерiндегi кәмелетке толған әрекет қабiлеттiгi бар азаматтардың осы мекеменiң немесе тиiстi халықты әлеуметтiк қорғау органдарының басшысы куәландырған сенiмхаттары;
5) тергеу изоляторларында отырған адамдардың тергеу изоляторларының бастықтары куәландырған сенімхаттары теңестіріледі.
4. Хат-хабар, соның iшiнде ақша және сәлемдеме алуға, жалақы және азаматтар мен заңды тұлғалардан өзге де төлемдер алуға сенiмхатты сенiм бiлдiрушi тұратын республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдары, аудандық маңызы бар қала, кент, ауыл әкімдері, ол жұмыс iстейтiн немесе оқитын ұйым, тұрғылықты жерi бойынша тұрғын үй пайдалану ұйымы, ол емделiп жатқан тұрақты емдеу мекемесiнiң әкiмшiлiгi, сондай-ақ әскери қызметшiлерге сенiмхат берiлгенде тиiстi әскери бөлiмдердiң командованиесi куәландыруы мүмкiн. Құжат жiберудi байланыс қызметкерi жүзеге асырған кезде телеграф арқылы, сондай-ақ байланыстың басқа да түрлерi арқылы жiберiлетiн сенiмхатты байланыс органдары куәландырады.
5. Үшiншi жақтар сенiм бiлдiрiлген адамға сенiм бiлдiрушi факсимилелiк және өзге де байланыстар бойынша, ресми байланыс органдарының қатысуынсыз жолдаған өздерiне қатысты әрекеттер жасау үшiн берiлген сенiмхатты түпнұсқа деп санауға құқылы.
6. Заңды тұлға атынан сенiмхат оның басшысы немесе бұған оның құрылтай құжаттарымен уәкiлеттiк берiлген өзге де адамның қолы қойылып берiледi және егер Қазақстан Республикасының заңнамасына сәйкес аталған тұлғаның мөрі болуға тиіс болса, осы ұйымның мөрiмен бекемделедi.
7. Ақша және басқа бағалы мүлiктi алуға немесе беруге мемлекеттiк органның, коммерциялық ұйым мен коммерциялық емес ұйымның атынан берiлетiн сенiмхатқа сол ұйымның бас (аға) бухгалтерi де қол қоюға тиiс.
8. Банкiде операциялар жасауға берiлетiн сенiмхатты және сауда саласында мәмiле жасауға берiлетiн сенiмхатты беру тәртiбi мен нысаны арнайы ережелермен белгiленуi мүмкiн.
Ескерту. 167-бапқа өзгерістер енгізілді - ҚР 2004.12.20 N 13 (2005.01.01 бастап қолданысқа енгізіледі), 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен; 03.07.2013 № 121-V ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Конституциялық Заңымен; 29.12.2014 № 269-V (01.01.2015 бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
168-бап. Сенiмхат мерзiмi
1. Сенiмхат үш жылдан аспайтын мерзiмге берiлуi мүмкiн. Егер сенiмхатта неғұрлым ұзақ мерзiм көрсетiлсе, ол үш жыл бойы, ал егер қолдану мерзiмi көрсетiлмесе, берiлген күннен бастап бiр жыл бойы жарамды болады.
2. Берілген күні көрсетілмеген сенімхат маңызсыз болып табылады. Ескерту. 168-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен (
алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
169-бап. Сенiм ауысуы
1. Сенiм бiлдiрiлген адам өзiне уәкiлдiк берiлген әрекеттi өзi жасауға тиiс. Алған сенiмхат бойынша сенiм ауыстыруға уәкiлдiк берiлген не сенiм бiлдiрушiнiң мүдделерiн қорғауға мәжбүр болған ретте ғана ол осы әрекеттердi жасау сенiмiн басқа адамға аудара алады.
2. Сенім білдірілген адамның өз өкілеттігін басқа адамға беруі жөніндегі сенімхатты, осы Кодекстің 167-бабының 4 және 6-тармақтарында көзделгеннен басқа жағдайларда, нотариат куәландыруға тиіс.
Сенім білдірген адам өз өкілеттігін басқа адамға толық көлемде сеніп беретін сенімхатқа бастапқы сенімхат қоса берілуге тиіс. Сенім білдірілген адам бастапқы сенімхатта көрсетілген жекелеген өкілеттіктерді басқа адамға не
бірнеше адамға сеніп беретін сенімхатқа бастапқы сенімхаттың нотариат куәландырған көшірмесі қоса берілуге тиіс.
3. Сенiм ауыстыру жөнiнде берiлген сенiмхаттың қолданылу мерзiмi ол негiзге алынып берiлген алғашқы сенiмхаттың қолданылу мерзiмiнен аспауы керек.
4. Өз өкiлеттiгiн басқа бiреуге берген сенiм бiлдiрiлген адам бұл жөнiнде сенiм бiлдiрушiнi дереу хабардар етуге және оған әлгi адам туралы, оның тұрғылықты жерi туралы қажеттi мәлiметтердi хабарлауға тиiс. Бұл мiндеттiң орындалмауынан, сенiм бiлдiрiлген адамға нақ өз әрекеттерi үшiн жауапкершiлiк жүктелетiнi сияқты, өз өкiлеттiгiн берген адамның әрекеттерi үшiн де жауапкершiлiк жүктеледi.
Ескерту. 169-бапқа өзгеріс енгiзiлдi - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
170-бап. Сенiмхаттың тоқтатылуы
1. Сенiмхаттың қолданылуы: 1) сенiмхат мерзiмiнiң өтуi; 2) сенiмхатта көзделген әрекеттердiң жүзеге асуы; 3) сенiмхатты берушi адамның оның күшiн жоюы; 4) сенiмхат берiлген адамның одан бас тартуы; 5) өз атынан сенiмхат берген заңды тұлғаның тоқтатылуы; 6) атына сенiмхат берiлген заңды тұлғаның таратылуы; 7) сенiмхат берген адамның қайтыс болуы (оның ішінде қайтыс болған деп
жариялануы), оның әрекет қабiлеттiгi жоқ, әрекет қабiлеттiгi шектеулi немесе хабар-ошарсыз кеттi деп танылуы;
8) сенiмхат берiлген азаматтың қайтыс болуы (оның ішінде қайтыс болған деп жариялануы), оның әрекет қабiлеттiгi жоқ, әрекет қабiлеттiгi шектеулi немесе хабар-ошарсыз кеттi деп танылуы салдарынан тоқтатылады.
2. Сенiмхатты берген адам сенiмхаттың немесе сенiмхатты ауыстырудың күшiн кез келген уақытта жоя алады, ал сенiмхат берiлген адам одан бас тарта алады. Бұл құқықтан бас тарту туралы келiсiм маңызсыз болады.
Ескерту. 170-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
171-бап. Сенiмхаттың тоқтатылу салдары
1. Сенiмхат берушi сенiмхаттың күшiн жойғандығы туралы (осы Кодекстiң 170-бабы) сенiмхат берiлген адамға, сондай-ақ сенiмхат берiлгендердiң алдында өкiлдiк ету үшiн өзiне белгiлi үшiншi жаққа хабарлауға мiндеттi. Сенiмхат осы Кодекстiң 170-бабының 5 және 7-тармақтарында көрсетiлген негiздерге сүйенiп тоқтатылған реттерде дәл сондай мiндет сенiмхат берушi адамның құқықты мирасқорларына да жүктеледi.
2. Сенiмхат берiлген адамға сенiмхаттың тоқтатылғанын бiлгенге дейiн немесе бiлуге тиiс болған кезге дейiн оның жасаған әрекеттерi нәтижесiнде пайда болған құқықтар мен мiндеттер сенiмхатты берген адам және оның құқықты мирасқорлары үшiн үшiншi жақтарға қатысты күшiн сақтайды. Егер үшiншi жақ сенiмхаттың тоқтатылғанын бiлсе немесе бiлуге тиiс болса бұл ереже қолданылмайды.
3. Сенiмхат берiлген адам немесе оның құқықты мирасқоры сенiмхат тоқтатылысымен оны дереу қайтаруға тиiс.
4. Сенiмхаттың тоқтатылуына байланысты осы сенiмхат бойынша басқа адамға өкiлеттiк беру де (сенiм ауысуы) күшiн жояды.
6-тарау. Мерзімдерді есептеу
172-бап. Мерзiм белгiлеу
1. Заңдармен, мәмiлемен белгiленген не сот тағайындайтын мерзiм күнтiзбелiк күнмен немесе сөзсiз болуға тиiстi оқиға көрсетiлiп белгiленедi.
2. Мерзiм жылдармен, айлармен, апталармен, күндермен немесе сағаттармен есептелетiн уақыт кезеңi ретiнде де белгiленуi мүмкiн.
173-бап. Уақыт кезеңiмен белгiленетiн мерзiмнiң басталуы
Уақыт кезеңiмен белгiленетiн мерзiмнiң өтуi күнтiзбелiк күннен немесе мерзiмнiң басталуы белгiленген оқиға болғаннан кейiнгi келесi күннен басталады .
174-бап. Уақыт кезеңiмен белгiленетiн мерзiмнiң аяқталуы
1. Жылдармен есептелетiн мерзiм - мерзiмнiң соңғы жылының тиiстi айы мен күнiнде бiтедi.
Жарты жылмен есептелетiн мерзiмге айлармен есептелетiн мерзiмнiң ережелерi қолданылады.
2. Жыл тоқсандарымен есептелетiн мерзiмге айлармен есептелетiн мерзiмнiң ережелерi қолданылады. Бұл орайда бiр тоқсан үш айға тең деп есептеледi, ал тоқсандарды есептеу жыл басынан бастап жүргiзiледi.
3. Айлармен есептелетiн мерзiм - мерзiмнiң соңғы айының тиiстi күнiнде бiтедi.
Жарты аймен белгiленетiн мерзiм күндермен есептелетiн мерзiм ретiнде қаралады да, он бес күнге тең болып есептеледi.
Егер айлармен есептелетiн мерзiмнiң аяқталуы тиiстi күн саны жоқ айға тура келсе, мерзiм сол айдың соңғы күнiнде бiтедi.
4. Апталармен есептелетiн мерзiм - мерзiмнiң соңғы аптасының тиiстi күнiнде бiтедi.
175-бап. Мерзiмнiң жұмыс iстемейтiн күнде аяқталуы
Егер мерзiмнiң соңғы күнi жұмыс iстемейтiн күнге тура келсе, содан кейiнгi ең таяу жұмыс күнi мерзiмнiң аяқталған күнi болып саналады.
176-бап. Мерзiмнiң соңғы күнiнде әрекет жасау тәртiбi
1. Егер мерзiм қандай да бiр әрекет жасауға белгiленген болса, ол әрекет мерзiмнiң соңғы күнiндегi сағат жиырма төртке дейiн орындалуы мүмкiн.
Алайда, егер бұл әрекет ұйымда жасалуға тиiс болса, онда мерзiм осы ұйымда белгiленген ережелер бойынша тиiстi операциялар тоқтатылған сағатта бiтедi.
2. Мерзiмнiң соңғы күнiндегi сағат жиырма төртке дейiн почтаға, телеграфқа немесе өзге де байланыс мекемесiне тапсырылған жазбаша мәлiмдемелер мен хабарламалар мерзiмiнде жасалған болып саналады.
7-тарау. Талап мерзімі
177-бап. Талап қою ұғымы
1. Талаптың ескiруi - адам құқығының немесе заңмен қорғалатын мүдденiң бұзылуынан туындайтын талаптың қанағаттандырылуы мүмкiн болатын уақыт кезеңi.
2. Талап қою мерзiмдерi және оларды есептеу тәртiбi заңмен көзделедi және оларды тараптардың келiсуiмен өзгертуге болмайды.
178-бап. Талап қою мерзiмдерi
1. Талап қоюдың жалпы мерзiмi үш жыл болып белгiленедi.
2. Талаптардың жекелеген түрлерi үшiн заң құжаттарымен талап қоюдың жалпы мерзiммен салыстырғанда қысқартылған немесе неғұрлым ұзақ арнаулы мерзiмдерi белгiленуi мүмкiн.
3. Осы Кодекстiң 177, 179-186-баптарының ережелерi, егер заң құжаттарында өзгеше көзделмесе, талап қоюдың арнаулы мерзiмдерiне де қолданылады.
179-бап. Талап қоюдың қолданылуы
1. Талап қою мерзiмiнiң өтiп кетуiне қарамастан бұзылған құқықты қорғау туралы талапты сот өз қарауына алады.
2. Талап мерзiмiн сот шешiм шығарғанға дейiн дауда тарап жасаған мәлiмдеме бойынша ғана сот қолданады.
3. Талап қойғанға дейiн талап қою мерзiмiнiң өтiп кетуi соттың талаптан бас тарту туралы шешiм шығаруына негiз болады.
Басты талап бойынша талап қою мерзiмiнiң бiтуiне байланысты қосымша талаптар (айыптарды өндiрiп алу, кепiлдiк берушiнiң жауапкершiлiгi және т.б. туралы) бойынша да талап қою мерзiмi бiтедi.
180-бап. Талап қою мерзiмiнiң өтуi
1. Талап қою мерзiмiнiң өтуi адам құқық бұзушылық туралы бiлген немесе бiлуге тиiс болған күннен басталады. Оларды бұл ережеден айыру осы Кодекспен және өзге де заң құжаттарымен белгiленедi.
2. Белгiленген орындау мерзiмiне байланысты мiндеттемелер бойынша талап қою мерзiмiнiң өтуi орындалу мерзiмi аяқталғаннан кейiн басталады.
3. Орындалу мерзiмi белгiленбеген не талап ету кезiмен белгiленген мiндеттемелер бойынша талап қою мерзiмiнiң өтуi мiндеттеменi орындау туралы талап қойылған кезден басталады, ал егер борышқорға сондай талаптарды орындау үшiн жеңiлдiк мерзiмi берiлсе, талап мерзiмiн есептеу аталған мерзiм аяқталғаннан кейiн басталады (осы Кодекстiң 277-бабының 2-тармағы).
4. Регрестiк мiндеттемелер бойынша талап мерзiмiнiң өтуi негiзгi мiндеттеменi орындау кезiнен басталады.
181-бап. Мiндеттемедегi адамдар өзгерген кездегi талап қою мерзiмi
Мiндеттемедегi адамдардың өзгеруi талап қою мерзiмi мен оны есептеу тәртiбiн өзгертуге әкелiп соқтырмайды.
182-бап. Талап қою мерзiмiнiң өтуiн тоқтата тұру
1. Талап қою мерзiмiнiң өтуi:
1) егер талап қоюға төтенше және бұл жағдайда болмай қоймайтын оқиға ( бой бермейтiн күш) кедергi жасаса;
2) мiндеттемелердiң бұл түрiн орындау Қазақстан Республикасы Президентiнiң жариялауымен кейiнге қалдырылуына байланысты (мораторий):
3) егер талапкер немесе жауапкер соғыс жағдайына көшiрiлген әскери бөлiмшелер құрамында болса;
4) егер әрекет қабiлеттiгi жоқ адамның заңды өкiлi болмаса; 5) тиiстi қатынасты реттейтiн заңдардың қолданылуын тоқтатуға байланысты
тоқтатыла тұрады. Азаматтың өмiрiне немесе денсаулығына келтiрiлген зиянның орнын толтыру
туралы талаптар бойынша талап қою мерзiмiнiң өтуi азаматтың зейнетақы төлемдерiн тағайындау және/немесе жүзеге асыру туралы немесе жәрдемақы тағайындау туралы тиiстi ұйымдарға жолдануына байланысты зейнетақы төлемдерi тағайындалғанға және/немесе жүзеге асырылғанға немесе жәрдемақы тағайындалғанға не зейнетақы төлемдерiн тағайындаудан және/немесе жүзеге асырудан немесе жәрдемақы тағайындаудан бас тартылғанға дейiн тоқтатыла тұрады.
2. Талап қою мерзiмiнiң өтуi, егер осы бапта көрсетiлген мән-жайлар талап мерзiмiнiң соңғы алты айы iшiнде пайда болса немесе бұрынғысынша қала берсе тоқтатыла тұрады, ал егер бұл мерзiм алты айдан аспаса - талап мерзiмiнiң өтуi кезiнде тоқтатыла тұрады.
3. Тоқтата тұруға әкелiп соқтырған мән-жайлар тоқтатылған күннен бастап талап қою мерзiмiнiң өтуi одан әрi жалғасады. Бұл орайда мерзiмнiң қалған бөлiгi алты айға дейiн, ал егер талап қою мерзiмi алты айдан аспаса - талап мерзiмiне дейiн ұзартылады.
Ескерту. 182-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1997.06.19 . N 134-I Заңымен.
183-бап. Талап қою мерзiмiнiң өтуiндегi үзiлiс
1. Талап қою мерзiмiнiң өтуi белгiленген тәртiппен талап қою, тараптардың медиация туралы шарт жасасуы, сондай-ақ мiндеткер адамның борышты немесе өзге мiндеттердi мойындағандығын дәлелдейтiн әрекеттер жасауы арқылы үзiледi.
2. Үзiлiстен кейiн талап қою мерзiмiнiң өтуi қайтадан басталады; үзiлiске дейiн өткен уақыт жаңа мерзiмге есептелмейдi.
Ескерту. 183-бапқа өзгерту енгізілді - ҚР 2011.01.28 N 402-IV (2011.08.05 бастап қолданысқа енгізіледі) Заңымен.
184-бап. Талапты қараусыз қалдырған ретте талап қою мерзiмiнiң өтуi
1. Егер талапты сот қараусыз қалдырса, талап қойылғанға дейiн басталған талап қою мерзiмi жалпы тәртiппен одан әрi жалғаса бередi.
2. Егер сот қылмыстық iсте қойылған талапты қараусыз қалдырса, талап қоюға дейiн басталған талап қою мерзiмiнiң өтуi талапты қараусыз қалдырған үкiм заңды күшiне енгiзiлгенге дейiн тоқтатыла тұрады. Мерзiмi тоқтатыла тұрған кездегi уақыт талап қою мерзiмiне есептелмейдi. Бұл орайда, егер мерзiмнiң қалған бөлiгi алты айдан аз болса, ол алты айға дейiн ұзартылады.
185-бап. Талап қою мерзiмiн қалпына келтiру
1. Ерекше жағдайларда, талапкердiң жеке басына байланысты мән-жайлар ( ауыр науқас, дәрменсiз халде болу, сауатсыздық және т.б.) бойынша талап қою мерзiмi өтiп кетуiнiң себебiн сот орынды деп таныған кезде, азаматтың бұзылған құқығы қорғалуға тиiс. Талап қою мерзiмiнiң өтiп кету себептерi орынды болып, егер ол талап мерзiмiнiң соңғы алты ай iшiнде орын алған болса, ал егер бұл мерзiм алты айға тең немесе алты айдан аз болса - талап мерзiмiнiң өтуi кезiнде танылады.
2. Белгiлi бiр iс бойынша сот шешiмiн орындаудан бас тартылуына байланысты заң құжаттарына сәйкес талапкердiң тап сол iс бойынша жаңа талап қою құқығы пайда болған ретте талап қою мерзiмi қалпына келтiрiледi және қайтадан өте бастайды.
186-бап. Талап қою мерзiмi бiткеннен кейiн мiндеттердi атқару
Талап қою мерзiмi бiткеннен кейiн мiндетiн атқарған борышқордың немесе өзге мiндеттi адамның тiптi сол мiндеттi атқарған кезiнде талап мерзiмiнiң өтiп кеткенiн бiлмесе де, аталған адамның өзi атқарған нәрсесiн қайтаруды талап етуге құқығы жоқ.
187-бап. Талап қою қолданылмайтын талаптар
Талап қою: 1) заң құжаттарында көзделгеннен басқа реттерде материалдық емес игiлiктер
мен мүлiктiк емес өзiндiк құқықтарды қорғау туралы талаптарға; 2) салымшылардың банкiге банктiк салымдарды беру туралы талаптарына;
3) азаматтың өмiрiне немесе денсаулығына келтiрiлген зиянның орнын толтыру туралы талаптарға қолданылмайды. Алайда, талап қою мерзiмi өтiп кеткеннен кейiн қойылған талаптар талап қойыла бастаған соң үш жылдан асырмай қанағаттандырылады;
4) егер меншiк иесiнiң немесе өзге заң иеленушiнiң өз құқығының кез келген бұзылуы иелiктен айыруға байланысты болмаса (осы Кодекстiң 264, 265-баптары ), олардың осы құқық бұзушылықты жою туралы талабына;
5) заң құжаттарында белгiленген реттерде басқа талаптарға да қолданылмайды.
Ескерту. 187-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1997.07.11 . N 154 Заңымен.
II бөлiм. Меншік құқығы және өзге де заттық құқықтар
8-тарау. Меншік құқығы және өзге де заттық құқықтар туралы жалпы ережелер
Ескерту. 8-тараудың тақырыбы жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
188-бап. Меншiк құқығы ұғымы және оның мазмұны
1. Меншiк құқығы дегенiмiз субъектiнiң заң құжаттары арқылы танылатын және қорғалатын өзiне тиесiлi мүлiктi өз қалауынша иелену, пайдалану және оған билiк ету құқығы.
Меншiк құқығы мәмiле жасалған кезде болған барлық жүктемелерiмен басқа адамға берiледi.
2. Меншiк иесiнiң өз мүлкiн иелену, пайдалану және оған билiк ету құқығы болады.
Иелену құқығы дегенiмiз мүлiктi iс жүзiнде иеленудi жүзеге асыруды заң жүзiнде қамтамасыз ету.
Пайдалану құқығы дегенiмiз мүлiктен оның пайдалы табиғи қасиеттерiн алудың, сондай-ақ одан пайда табудың заң жүзiнде қамтамасыз етiлуi. Пайда кiрiс, өсiм, жемiс, төл алу және өзге нысандарында болуы мүмкiн.
Билiк ету құқығы дегенiмiз мүлiктiң заң жүзiндегi тағдырын белгiлеудiң заңмен қамтамасыз етiлуi.
3. Меншiк иесi өзiне тиесiлi мүлiкке қатысты өз қалауы бойынша кез келген әрекеттер жасауға, соның iшiнде бұл мүлiктi басқа адамдардың меншiгiне берiп,
иелiгiнен шығаруға, өзi меншiк иесi болып қала отырып, оларға мүлiктi иелену, пайдалану және оған билiк ету жөнiндегi өз өкiлеттiгiн тапсыруға, мүлiктi кепiлге беруге және оған басқа да әдiстермен ауыртпалық түсiруге, оларға өзгеше түрде билiк етуге құқылы.
4. Меншiк иесiнiң өз өкiлеттiгiн жүзеге асыруы басқа тұлғалар мен мемлекеттiң құқықтарын және заңмен қорғалатын мүдделерiн бұзбауға тиiс. Құқықтар мен заңды мүдделердi бұзушылық басқа нысандарымен қатар, меншiк иесiнiң өзiнiң монополиялық және өзге де басымдық жағдайын пайдаланып қиянат жасауынан көрiнуi мүмкiн.
Меншiк иесi өз құқықтарын жүзеге асырған кезде азаматтардың денсаулығы мен айналадағы ортаға келтiрiлуi мүмкiн зардаптарға жол бермеу шараларын қолдануға мiндеттi.
5. Меншiк құқығының мерзiмi шексiз. Мүлiкке меншiк құқығы осы Кодексте көзделген негiздер бойынша ғана ықтиярсыз тоқтатылуы мүмкiн.
6. Заң құжаттарында көзделген реттерде, жағдайлар мен шектерде меншiк иесi өз мүлкiн басқа адамдардың шектеулi түрде пайдалануына жол беруге мiндеттi.
Ескерту. 188-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
189-бап. Мүлiктi күтiп ұстау ауыртпалығы
1. Меншiк иесi, егер заң құжаттарында немесе шартта өзгеше көзделмесе, өзiне тиесiлi мүлiктi күтiп ұстау ауыртпалығын көтередi және бiржақты тәртiппен мұндай ауыртпалықты үшiншi жаққа ауыстыра алмайды.
2. Егер мүлiк заңды түрде үшiншi жақтарда болса, олардың бөтен адамның мүлкiн күтiп ұстауға жұмсаған шығындарын, егер шартта өзгеше көзделмесе, меншiк иесi өтеуге тиiс.
Затты күтiмсiз және заңсыз ұстаған адамға мүлiктi күтiп ұстауға жұмсаған шығындары өтелмейдi (осы Кодекстiң 263-бабы).
190-бап. Мүлiктiң кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi
1. Иелiктен айырылған заттардың кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi, егер заң құжаттарында немесе шартта өзгеше белгiленбесе, сатып алушыда меншiк құқығы пайда болумен бiр мезгiлде соған көшедi.
2. Егер иелiктен айырушы адам заттарды беру мерзiмiнiң өткiзiлiп жiберiлуiне кiнәлi болса немесе сатып алушы оларды қабылдау мерзiмiнiң
өткiзiлiп жiберiлуiне кiнәлi болса, кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi мерзiмiн өткiзiп жiберген тарап көтередi.
191-бап. Жеке меншiк ұғымы және оның түрлерi
1. Жеке меншiк азаматтардың және мемлекеттiк емес заңды тұлғалар мен олардың бiрлестiктерiнiң меншiгi ретiнде көрiнедi.
2. Заң құжаттарына сәйкес азаматтарға немесе заңды тұлғаларға тиесiлi бола алмайтын жекелеген мүлiк түрлерiнен басқа кез келген мүлiк жеке меншiкте болуы мүмкiн.
Жеке меншiкте болатын мүлiктiң саны мен құны шектелмейдi. Ескерту. 191-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02
. N 211 Заңымен.
192-бап. Мемлекеттiк меншiк құқығы
1. Мемлекеттiк меншiк республикалық және коммуналдық меншiк түрiнде көрiнедi.
2. Республикалық меншiк мемлекеттік қазынадан және заң құжаттарына сәйкес мемлекеттiк республикалық заңды тұлғаларға бекiтiлiп берiлген мүлiктен тұрады.
Республикалық бюджеттiң қаражаты, мемлекеттiк меншiктiң осы Кодекстiң 193-бабында аталған объектiлерi және мемлекеттiк заңды тұлғаларға бекiтiлiп берiлмеген өзге де мемлекеттiк мүлiк Қазақстан Республикасының мемлекеттiк қазынасын құрайды.
3. Коммуналдық меншiк жергiлiктi қазынадан және заң құжаттарына сәйкес коммуналдық заңды тұлғаларға бекiтiлiп берiлген мүлiктен тұрады.
Жергiлiктi бюджет қаражаты және мемлекеттiк заңды тұлғаларға бекiтiлiп берiлмеген өзге де коммуналдық мүлiк жергiлiктi қазынаны құрайды.
РҚАО-ның ескертпесі! 3-1-тармақтың осы редакциясы ҚР 11.07.2017 № 90-VI Заңына сәйкес (
қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
3-1. Коммуналдық меншiк жергiлiктi мемлекеттiк басқару және өзін-өзі басқару деңгейлерi бойынша:
облыстық, республикалық маңызы бар қаланың, астананың;
аудандық (облыстық маңызы бар қала); аудандық маңызы бар қаланың, ауылдың, кенттің, ауылдық округтің (
жергілікті өзін-өзі басқарудың коммуналдық меншігі) болып бөлінеді. 4. Мемлекеттiк меншiктегi мүлiк мемлекеттiк заңды тұлғаларға шаруашылық
жүргiзу немесе оралымды басқару құқығымен бекiтiлiп берiлуi мүмкiн. 5. Жекелеген мемлекеттік мекемелердің иелігіндегі мемлекеттік мүліктің
құқықтық режимінің ерекшеліктері заң актілерімен белгіленеді. 6. Мемлекеттiк мүлiктi мемлекеттiк меншiктiң бір түрiнен екiншiсiне беру
Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісіне сәйкес жүзеге асырылады.
Мүлікті жеке меншіктен мемлекеттік меншікке ерікті және өтеусіз беру Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде айқындалатын тәртіппен жүзеге асырылады.
РҚАО-ның ескертпесі! 6-тармақтың үшінші бөлігінің осы редакциясы ҚР 11.07.2017 № 90-VI Заңына
сәйкес (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
Коммуналдық меншiктегi мүлiктi жергiлiктi мемлекеттiк басқарудың және өзін-өзі басқарудың бiр деңгейiнен екiншiсiне беру Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісіне сәйкес жүзеге асырылады.
7. Осы баптың ережелері, егер Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде өзгеше көзделмесе немесе азаматтық құқықтардың мәніне қайшы келмесе, меншік құқығынан басқа, тиісінше мемлекеттік мүлікке өзге де азаматтық құқықтарға қолданылады.
Ескерту. 192-бапқа өзгерістер енгiзiлдi - ҚР 1998.03.02 № 211, 1999.11.04 № 472, 2001.03.02 № 162, 2002.05.21 № 323, 2005.05.18 № 50, 2007.01.12 № 225, 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 11.07.2017 № 90-VI (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) Заңдарымен.
193-бап. Жерге және басқа да табиғи ресурстарға меншiк
Жер, оның қойнауы, су, өсiмдiк және жануарлар дүниесi, басқа да табиғи ресурстар мемлекеттiк меншiкте болады. Жер заң актiлерiнде белгiленген негiздерде, шарттар мен шектерде жеке меншiкте болуы да мүмкiн.
Ескерту. 193-бап жаңа редакцияда - ҚР 1998.03.02. N 211 Заңымен.
193-1-бап. Стратегиялық объектілер
1. Қазақстан қоғамының орнықты дамуы үшін әлеуметтік-экономикалық маңызы бар, оны иелену және (немесе), пайдалану және (немесе) оған билік ету Қазақстан Республикасының ұлттық қауіпсіздігінің жай-күйіне әсер ететін мүлік стратегиялық объект болып табылады.
2. Стратегиялық объектілерге: магистральдық темір жол желілері; магистральдық құбырлары; ұлттық электр тораптары; магистральдық байланыс желілері; телерадио хабарларын тарату объектілері (телевизия және радио хабарларын таратудың жерүсті және жерсеріктік жүйелерінің өндірістік-технологиялық кешені); мұнайды қайта өңдеу өндірістері; қуаты кемінде 50 мегаватт энергия өндіруші объектілер; ұлттық почта тораптары; халықаралық әуежайлар; халықаралық маңызды мәртебесі бар теңіз порттары; әуе қозғалысын басқару жүйесінің аэронавигациялық құрылғылары; кемелердің қауіпсіз жүзуін реттейтін және оған кепілдік беретін құрылғылар мен навигациялық белгілер; атом энергиясын пайдаланатын объектілер; ғарыш саласының объектілері; су шаруашылығы құрылыстары; ортақ пайдаланудағы автомобиль жолдары; сондай-ақ меншігінде стратегиялық объектілер бар заңды тұлғалар акцияларының пакеттері (қатысу үлестері, пайлары), меншігінде стратегиялық объектілер бар жеке және заңды тұлғалардың шешімдерін тікелей немесе жанама айқындауға немесе қабылдайтын шешімдеріне ықпал етуге мүмкіндігі бар заңды тұлғалар акцияларының пакеттері (қатысу үлестері, пайлары) жатқызылуы мүмкін.
Стратегиялық объектілер Қазақстан Республикасының заңнамалық актілеріне сәйкес мемлекеттік және жеке меншікте болуы мүмкін.
3. Стратегиялық объектілерге үшінші тұлғалардың құқықтарымен ауыртпалық салу не оларды иеліктен шығару Қазақстан Республикасы Үкіметінің рұқсат беру туралы шешімі негізінде және Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде айқындалатын тәртіппен мүмкін болады.
4. Азамат немесе мемлекеттік емес заңды тұлға стратегиялық объектіні иеліктен шығару бойынша мәміле жасасуға ниет білдірген, сондай-ақ стратегиялық объектіге өндіріп алу қолданылған не стратегиялық объектіні оңалтуды не банкроттықты басқарушы иеліктен шығарған не кепіл ұстаушы кепілге салынған мүлікті (стратегиялық объектіні) соттан тыс тәртіппен өткізген не стратегиялық объектіге сот актісінің негізінде өндіріп алу қолданылған жағдайларда, Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық
актісінде айқындалған шарттар бойынша Қазақстан Республикасы стратегиялық объектіні сатып алудың басым құқығына ие болады.
Стратегиялық объектінің нарықтық құны Қазақстан Республикасының бағалау қызметі туралы заңнамасына және Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісіне сәйкес айқындалады.
Стратегиялық объектіні сатып алудың басым құқығын пайдалану тәртібі Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде айқындалады.
5. Егер стратегиялық объектiге үшiншi тұлғалардың құқықтарымен ауыртпалық салу не оны иелiктен шығару кезiнде осы баптың 3 және 4- тармақтарындағы талаптар бұзылса, мұндай мәмiлелер маңызсыз болады.
Ескерту. 193-1-баппен толықтырылды - ҚР 2007.08.07 N 321Заңымен, өзгерістер енгізілді - ҚР 2009.02.13 N 135-IV(қолданысқа енгізілу тәртібін 3- баптан қараңыз), 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі), 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.06.22 N 21-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгiзiледi); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
194-бап. Тұрғын үйге меншiк құқығы мен өзге де заттық құқықтар
Тұрғын үйге меншiк құқығы мен өзге де заттық құқықтарды жүзеге асыру ерекшелiктерi тұрғын үй заңдарымен реттеледi.
195-бап. Меншiк иесi болып табылмайтын адамдардың заттық құқықтары
1. Меншiк құқығымен қатар заттық құқықтарға: 1) жердi пайдалану құқығы; 2) шаруашылық жүргiзу құқығы; 3) оралымды басқару құқығы;
3-1) бөтеннің жылжымайтын мүлкін шектеулі түрде нысаналы пайдалану құқығы (сервитут);
4) осы Кодексте немесе өзге заң актiлерiнде көзделген басқа да заттық құқықтар.
2. Заттық құқықтарға, егер заңдарда өзгеше көзделмесе немесе осы заттық құқықтың табиғатына қайшы келмесе, меншiк құқығы туралы нормалар қолданылады.
3. Егер Қазақстан Республикасының заңнамалық актiлерiнде өзгеше көзделмесе, мүлiкке меншiк құқығының басқа тұлғаға ауысуы осы мүлiкке басқа да заттық құқықты тоқтату үшiн негiз болып табылмайды.
Ескерту. 195-бапқа өзгеріс енгiзiлдi - ҚР 1998.03.02 № 211, 2007.01.12 № 225, 2011.03.25 № 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
9-тарау. Шаруашылық жүргізу құқығы
196-бап. Мемлекеттiк кәсiпорынның шаруашылық жүргiзу құқығы
1. Шаруашылық жүргiзу құқығы мүлiктi мемлекеттен меншiк иесi ретiнде алған және бұл мүлiктi иелену, пайдалану және оған билiк ету құқықтарын осы Кодекспен және Қазақстан Республикасының өзге де заңнамалық актілерінде белгiленген шекте жүзеге асыратын мемлекеттiк кәсiпорынның заттық құқығы болып табылады.
2. Мемлекеттік кәсіпорындардың шаруашылық жүргізу құқықтарын жүзеге асыру ерекшеліктері Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде айқындалады.
Ескерту. 196-бапқа өзгерту енгiзiлдi - ҚР 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
197-бап. Шаруашылық жүргiзу құқығының объектiсi
Шаруашылық жүргiзу құқығының объектiсi, егер Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, кез келген мүлiк бола алады.
Ескерту. 197-бапқа өзгерту енгiзiлдi - ҚР 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
198-бап. Шаруашылық жүргiзу құқығына ие болу және тоқтату
1. Мүлiктi құрылып үлгiрген мемлекеттiк кәсiпорынға бекiту туралы меншiк иесi шешiм қабылдаған мүлiкке қатысты шаруашылық жүргiзу құқығы, егер заңдарда немесе меншiк иесiнiң шешiмiнде өзгеше белгiленбесе, бұл кәсiпорында мүлiктi кәсiпорынның дербес балансына бекiткен кезде пайда болады.
2. Шаруашылық жүргiзудегi мүлiктi пайдаланудың жемiстерi, өнiмi мен кiрiсi , сондай-ақ кәсiпорын шарттар немесе өзге де негiздер бойынша алған мүлiк меншiк құқығын алуға арналған заңдарда белгiленген тәртiп бойынша кәсiпорынның шаруашылық жүргiзуiне келiп түседi.
3. Мүлiкке шаруашылық жүргiзу құқығы меншiк құқығын тоқтатуға арналған заңдарда көзделген негiздер мен тәртiп бойынша, сондай-ақ меншiк иесiнiң шешiмiмен кәсiпорыннан мүлiк заңды жолмен қайтарып алынған реттерде тоқтатылады.
199-бап. Меншiк иесiнiң шаруашылық жүргiзудегi мүлiкке қатысты құқығы
Шаруашылық жүргiзудегi мүлiктiң меншiк иесi заң құжаттарына сәйкес кәсiпорын құру, оның қызметiнiң мәнi мен мақсаттарын белгiлеу, оны қайта құру мен тарату мәселелерiн шешедi, кәсiпорынға тиесiлi мүлiктiң өз мақсатында пайдаланылуы мен сақталуына бақылау жасауды жүзеге асырады.
Меншiк иесi өзi құрған кәсiпорынның шаруашылық жүргiзуiндегi мүлiктi пайдаланудан келтiрiлген таза табыстың бiр бөлiгiн алуға құқылы.
Ескерту. 199-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1997.07.11 . N 154 Заңымен.
200-бап. Мемлекеттiк кәсiпорынның мүлiктiк құқықтарын жүзеге асыру ережелерi
1. Қызметiн шаруашылық жүргiзу құқығында жүзеге асыратын мемлекеттiк кәсiпорынның, егер заң актiлерiнде өзгеше көзделмесе меншiк иесiнiң немесе ол уәкiлдiк берген мемлекеттiк органның жазбаша келiсiмiнсiз:
1) өзiне тиесiлi үйлердi, құрылыстарды, жабдықты және кәсiпорынның басқа да негiзгi құралдарын иеліктен айыруға немесе өзгеше әдiспен билiк етуге (осы бапта көзделген жағдайларды қоспағанда), ұзақ мерзiмдi (үш жылдан астам) жалға беруге, уақытша тегiн пайдалануға беруге;
2) филиалдар, өкілдіктер құруға, жеке кәсiпкерлермен бiрге кәсiпорындар мен бiрлескен өндiрiстер құруға, олардың өзiнiң өндiрiстiк және ақша капиталын сатуға;
2-1) оған тиесiлi акцияларға (осы бапта көзделген жағдайларды қоспағанда), сондай-ақ дебиторлық берешекке билiк етуге;
3) заемдар беруге; 4) үшiншi тұлғалардың мiндеттемелерi бойынша кепiлдеме немесе кепiлдiк
беру.
2. Мемлекеттiк кәсiпорын, егер Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, негiзгi құралдарға жатпайтын, өзiне шаруашылық жүргiзу құқығымен бекiтiлiп берiлген мүлiкке дербес билiк етедi.
Шаруашылық жүргiзу құқығындағы мемлекеттiк кәсіпорынның мемлекеттiк кәсіпорынның негізгі құралдарына жататын мүлiкке қатысты, сондай-ақ оған тиесілi акцияларды сатуға және сыйға беру мәмiлелерiн жасасуға құқығы жоқ.
Ескерту. 200-бапқа өзгерту енгiзiлдi - ҚР 1997.07.11 N 154, 1998.03.02 N 211, 2002.05.21 N 323, 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
201-бап. Мемлекеттiк кәсiпорындар қатысатын қатынастарға меншiк құқығы туралы ережелердiң қолданылуы
Мемлекеттiк кәсiпорындар қатысатын мүлiктiк қатынастарға егер осы Кодекстен және өзге заң құжаттарынан өзгеше туындамаса, осы Кодекстiң меншiк құқығы туралы ережелерi қолданылады.
10-тарау. Оралымды басқару құқығы
202-бап. Оралымды басқару құқығы ұғымы мен оның мазмұны
1. Оралымды басқару құқығы меншiк иесiнiң қаражаты есебiнен қаржыландырылатын мекеменiң, меншiк иесiнен мүлiк алушы және өз қызметiнiң мақсатына, меншiк иесiнiң тапсырмаларына және мүлiктiң мақсатына сәйкес Қазақстан Республикасының заңнамалық актілерінде белгiленген шекте сол мүлiктi иелену, пайдалану және оған билiк ету құқығын жүзеге асырушы қазыналық кәсiпорындардың заттық құқығы болып табылады.
РҚАО-ның ескертпесі! 2-тармақтың осы редакциясы ҚР 11.07.2017 № 90-VI Заңына сәйкес (
қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) халық саны екі мың адамнан көп аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін – 01.01.2018 бастап қолданысқа енгізілді (халық саны екі мың адам және одан аз аудандық маңызы бар қалалар, ауылдар, кенттер, ауылдық округтер үшін 01.01.2020 дейін ҚР 27.12.1994 Азаматтық кодексінің 25.12.2017 датадағы архивтік нұсқасын қараңыз).
2. Қазыналық кәсіпорындар мен мемлекеттік мекемелерді жедел басқару құқығын жүзеге асырудың ерекшеліктері "Мемлекеттік мүлік туралы" және " Қазақстан Республикасындағы жергілікті мемлекеттік басқару және өзін-өзі басқару туралы" Қазақстан Республикасының заңдарында айқындалады.
Ескерту. 202-бапқа өзгерту енгiзiлдi - ҚР 1998.03.02 N 211, 1998.12.16 N 320, 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 11.07.2017 № 90-VI (қолданысқа енгізілу тәртібін 2-баптың 1-т. 1) тармақшасынан қараңыз) Заңдарымен.
203-бап. Оралымды басқару құқығына ие болу және тоқтату
Оралымды басқару құқығына ие болу мен тоқтату, егер Қазақстан Республикасының заңнамалық актілерінде өзгеше белгiленбесе, осы Кодекстiң 13 және 14-тарауларында көзделген ережелер мен тәртiп бойынша жүзеге асырылады.
Ескерту. 203-бапқа өзгерту енгiзiлдi - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
204-бап. Оралымды басқаруға берiлген мүлiктi меншiктенушiнiң құқығы
1. Оралымды басқарудағы мүлiктi меншiктенушi Қазақстан Республикасының заңнамалық актілеріне сәйкес мекеме, қазыналық кәсiпорын құру, оның қызметiнiң мәнi мен мақсаттарын белгiлеу мәселелерiн шешедi, мемлекеттiк мекеменiң немесе қазыналық кәсiпорынның заң жүзiндегi тағдырын, оның қызметiнiң мазмұнын белгiлеуге құқығы бар.
2. Меншiк иесi мекеменiң, қазыналық кәсiпорынның меншiк иесi берген мүлiктi тиiмдi пайдалануы мен сақтауына бақылау жасауды жүзеге асырады.
3. Мекеменi бiрнеше меншiк иесi құрған жағдайда, олардың арасындағы қатынастар мен меншiк иелерiнiң өз мүлкiне билiк жүргiзу құқықтары құрылтай шартымен немесе сол сияқты келiсiммен белгiленедi.
Ескерту. 204-бапқа өзгерту енгiзiлдi - ҚР 1998.12.16 N 320, 2011.03.01 N 414- IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
205-бап. Меншiк иесiнiң оралымды басқаруға берiлген мүлiктi қайтарып алу және қайта бөлу құқығы
Мекемеге немесе қазыналық кәсiпорынға бекiтiлiп берiлген мүлiктi меншiктенушi, егер Қазақстан Республикасының заңнамалық актілерінде өзгеше белгiленбесе, ол мүлiктi қайтарып алуға, не өзi құрған басқа заңды тұлғалар арасында өз қалауы бойынша қайта бөлуге құқылы.
Ескерту. 205-бапқа өзгерту енгiзiлдi - ҚР 1998.12.16 N 320, 2011.03.01 N 414- IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
206-бап. Мекеменің мүлкіне билік ету
Мекеме өзiне бекiтiлiп берiлген мүлiктi және оған смета бойынша бөлiнген қаражат есебiнен сатып алынған мүлiктi иелiктен өз бетінше шығаруға немесе оған өзгеше әдiспен билiк етуге құқылы емес.
Мемлекеттік мекемелердің табыс әкелетін қызметті жүзеге асыру ерекшеліктері Қазақстан Республикасының заңнамалық актілерінде белгіленеді.
Ескерту. 206-бап жаңа редакцияда - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
207-бап. Қазыналық кәсiпорынның және мекеменің борыштары бойынша құрылтайшының жауаптылығы
1. Қазыналық кәсiпорын өзiнiң мiндеттемелерi бойынша өз билiгiндегi ақшамен жауап бередi.
Қазыналық кәсiпорынның ақшалай қаражаты жеткiлiксiз болған жағдайда, оның мiндеттемелерi бойынша Қазақстан Республикасы немесе әкімшілік-аумақтық бөлініс тиісті бюджет қаражатымен субсидиарлық жауаптылықта болады.
2. Мекеменiң жауапкершiлiгi осы Кодекстiң 44-бабының 1-тармағында көзделген тәртiппен туындайды.
Ескерту. 207-бап жаңа редакцияда - ҚР 1998.12.16 N 320 Заңымен; өзгеріс енгiзiлдi - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
208-бап. Мекеменi меншiктену құқығының ауысуы
Мекеменi меншiктену құқығы басқа адамға ауысқан кезде бұл мекеме өзiне тиесiлi мүлiкке оралымды билiк жүргiзу құқығын сақтап қалады.
11-тарау. Ортақ меншік
209-бап. Ортақ меншiк ұғымы мен оның пайда болу негiздерi
1. Екi немесе бiрнеше адамның меншiгiндегi мүлiк оларға ортақ меншiк құқығымен тиесiлi болады.
2. Мүлiк меншiк иелерiнiң әрқайсысының меншiк құқығындағы үлестерi белгiлене отырып (үлестiк меншiк) немесе ондай үлестер белгiленбей (бiрлескен меншiк) ортақ меншiкте болуы мүмкiн.
3. Мүлiкке ортақ меншiк үлестiк меншiк болып табылады, бұған мүлiкке ортақ меншiк құру заңда көзделген реттер қосылмайды.
4. Ортақ меншiк екi немесе бiрнеше адамның меншiгiне мүлiк түскен кезде пайда болады, оны өзiнiң мақсаты өзгертiлмейiнше бөлуге болмайды ( бөлiнбейтiн заттар), өйткенi ол заңға сәйкес бөлiнуге жатпайды.
Бөлiнетiн мүлiкке ортақ меншiк заң құжаттарында немесе шартта көзделген реттерде пайда болады.
5. Бiрлескен меншiкке қатысушылардың келiсiмi бойынша, ал келiсiмге қол жетпеген жағдайда - сот шешiмi бойынша ортақ меншiкке осы адамдардың үлестi меншiгi белгiленуi мүмкiн.
6. Жылжымайтын мүлiкке меншiк кондоминиум нысанында пайда болуы мүмкiн, бұл жағдайда жылжымайтын мүлiктiң жекелеген бөлiктерi азаматтардың және (немесе) заңды тұлғалардың дара (бөлек) меншiгiнде болады, ал жылжымайтын мүлiктiң бөлек меншiкте емес бөлiктерi ортақ үлестiк меншiк құқығымен жылжымайтын мүлiк бөлiктерiнiң иелерiне тиесiлi болады.
Әрбiр меншiк иесiнiң ортақ мүлiктегi үлесi оның жылжымайтын мүлiктiң өзiне тиесiлi бөлiгiне бөлек меншiгiнен ажырағысыз.
Әрбiр меншiк иесiнiң ортақ мүлiктегi үлесiнiң мөлшерi мен оны ұстауға арналған шығындарға қатысу дәрежесi, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, жылжымайтын мүлiктiң дара (бөлек) меншiктегi бөлiктерiнiң мөлшерiне байланысты болады.
Кондоминиумның әр алуан түрлерiнiң құқықтық режимiнiң ерекшелiктерi заң актiлерiмен айқындалуы мүмкiн.
7. Инвестициялық пай қорының активтерiне ортақ үлестiк меншiктiң құқықтық режимiнiң ерекшелiктерi Қазақстан Республикасының инвестициялық және венчурлік қорлар туралы заң актiсiмен айқындалады.
Ескерту. 209-бапқа өзгерту енгiзiлдi – ҚР 1998.03.02. N 211, 2004.07.07. N 577 ; 04.07.2018 № 174-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
210-бап. Үлестiк меншiк құқығындағы үлестi анықтау
1. Егер үлестi меншiкке қатысушылар үлестерiнiң мөлшерi заң құжаттары негiзiнде анықталуы және оған барлық қатысушылардың келiсiмiмен белгiленуi мүмкiн болмаса, үлестер тең деп саналады.
2. Үлестi меншiкке барлық қатысушылардың келiсiмiмен олардың әрқайсысының ортақ мүлiктi құру мен көбейтуге қосқан салымдарына қарай қатысушылардың үлестерiн анықтау мен өзгерту тәртiбi белгiленуi мүмкiн.
211-бап. Үлестi меншiкке қатысушының оны жақсартуға байланысты құқықтары
1. Ортақ мүлiктi пайдаланудың белгiленген тәртiбiн сақтай отырып, оны бөлмей жақсартуды өз есебiнен жүзеге асырған үлестi меншiк қатысушысының ортақ мүлiкке құқықтағы өз үлесiн тиiсiнше ұлғайтуға құқығы бар.
2. Ортақ мүлiктi бөлiп алып жақсарту, егер үлестi меншiкке қатысушылардың келiсiмiнде өзгеше көзделмесе, оны жасаған қатысушының меншiгiне түседi.
212-бап. Үлестi меншiктегi мүлiкке билiк ету
1. Үлестi меншiктегi мүлiкке билiк ету оның барлық қатысушыларының келiсуiмен жүзеге асырылады.
2. Үлестi меншiкке әрбiр қатысушы өзiнiң үлесiн өз қалауы бойынша сатуға, сыйға тартуға, өсиет етуге, кепiлге беруге, не осы Кодекстiң 216-бабында көзделген шарттарды сақтай отырып, оған өзгеше түрде билiк етуге құқылы.
213-бап. Үлестi меншiктегi мүлiктi иелену және пайдалану
1. Үлестi меншiктегi мүлiктi иелену және пайдалану оның барлық қатысушыларының келiсуiмен, ал келiсiмге келмеген жағдайда - сот белгiлейтiн тәртiппен жүзеге асырылады.
2. Үлестi меншiктiң әрбiр қатысушысы ортақ мүлiктiң өз үлесi мөлшерiне тең бөлiгi өзiнiң иеленуiне және пайдалануына берiлуiне құқылы, ал бұл мүмкiн болмаған жағдайда - өз үлесiне тиесiлi мүлiктi иеленетiн және пайдаланатын басқа қатысушылардан тиiстi ақша сомасын немесе өзге де өтем төлеудi талап етуге құқылы.
214-бап. Үлестi меншiктегi мүлiктi пайдаланудан алынатын жемiстер, өнiмдер мен табыстар
Үлестi меншiктегi мүлiктi пайдаланудан алынатын жемiстер, өнiмдер мен табыстар ортақ мүлiктiң құрамына келiп түседi. Жемiстiң, өнiм мен табыстың
одан кейiнгi бөлiнуi, үлестi меншiктiң қатысушылары арасында, егер олардың арасындағы келiсiмде өзгеше көзделмесе, олардың үлестерiне сәйкес жүргiзiледi.
215-бап. Үлестi меншiктегi мүлiктi күтiп ұстауға байланысты шығындар
Үлестi меншiктiң әрбiр қатысушысы ортақ мүлiк бойынша өз үлесiне сәйкес салықтар, алымдар және өзге де төлемдер төлеуге, сондай-ақ оны күтiп ұстау мен сақтауға байланысты шығындарға қатысуға мiндеттi.
216-бап. Сатып алудың басым құқығы
1. Үлестi меншiк құқығындағы үлестi бөгде адамдарға сату кезiнде сатылатын үлестi оның сатылатын бағасы бойынша және жария саудаға салып сату реттерiнен басқа тең жағдайларда үлестi меншiктiң қалған қатысушыларының сатып алуға басым құқығы болады.
Үлестi меншiкке барлық қатысушылардың келiсiмi болмаған жағдайда үлестi меншiк құқығындағы үлестi сату үшiн жария саудаға салу осы Кодекстiң 222- бабының 2-тармағында көзделген реттерде және заң құжаттарында көзделген өзге де реттерде жүргiзiлуi мүмкiн.
2. Үлесiн сатушы оның сату бағасын және оны сатудың басқа да шарттарын көрсете отырып, үлестi меншiктiң басқа қатысушыларына өз үлесiн бөтен адамға сату ниетi туралы жазбаша түрде хабарлауға мiндеттi. Егер үлестi меншiктiң басқа қатысушылары сатып алудан бас тартса немесе қозғалмайтын мүлiкке меншiк құқығындағы сатылатын үлестi бiр ай iшiнде, ал басқа мүлiк жөнiнен - хабар алған күннен бастап он күн iшiнде сатып алмаса, сатушы өз үлесiн кез келген адамға сатуға құқылы.
3. Үлес сатып алудың басым құқығы бұзыла отырып сатылған жағдайда үлестi меншiктiң кез келген басқа қатысушысы үш айдың iшiнде сотта өзiне сатып алушының құқықтары мен мiндеттерiн аударуды талап етуге құқылы.
4. Үлестi сатып алудың басым құқығын басқа бiреуге беруге рұқсат етiлмейдi .
5. Осы баптың ережелерi айырбас шарты бойынша үлестi иелiктен айыру кезiнде де қолданылады.
6. Осы баптың ережелері стратегиялық объектілерді иеліктен шығару жағдайларына қолданылмайды.
Ескерту. 216-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.08.07 . N 321(ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
217-бап. Үлестi меншiк құқығындағы үлестiң шарт бойынша сатып алушыға ауысатын кезi
Үлестi меншiк құқығындағы үлес, егер тараптардың келiсiмiнде өзгеше көзделмесе, шарт жасасқан кезден бастап шарт бойынша сатып алушыға ауысады.
Мемлекеттiк тiркеуге немесе нотариат куәландыруға тиiстi шарт бойынша үлестi меншiк құқығындағы үлестiң ауысатын кезi осы Кодекстiң 238-бабының 2 -тармағына сәйкес белгiленедi.
218-бап. Үлестi меншiктегi мүлiктiң бөлiнуi және одан үлестi бөлiп шығару
1. Үлестi меншiктегi мүлiк оған қатысушылар арасындағы келiсiм бойынша өздерiнiң арасында бөлiнуi мүмкiн.
2. Үлестi меншiкке қатысушы ортақ мүлiктен өз үлесiн бөлiп шығаруды талап етуге құқылы.
3. Үлестi меншiкке қатысушылар ортақ мүлiктi бөлу немесе бiреуiнiң үлесiн бөлiп шығарудың әдiстерi мен шарттары жөнiнде келiсiмге келе алмаған жағдайда үлестi меншiкке қатысушы ортақ мүлiктен өз үлесiн заттай бөлiп берудi талап етуге құқылы.
Егер үлестi заттай бөлiп беруге заң құжаттарында жол берiлмесе немесе ол ортақ меншiктегi мүлiкке шамадан тыс залал келтiрмейiнше мүмкiн болмаса, бөлiнiп шығушы меншiк иесi үлестi меншiктiң басқа қатысушыларынан өз үлесiнiң құнын төлетуге құқылы.
4. Осы бап негiзiнде үлестi меншiктiң қатысушысына заттай бөлiп берiлетiн мүлiктiң меншiк құқығындағы оның үлесiне сәйкессiздiгi тиiстi ақша сомасын немесе өзге өтем төлеу арқылы жөнге келтiрiледi.
Басқа меншiк иелерiнiң үлестi меншiкке қатысушыға оның үлесiн заттай бөлiп берудiң орнына өтем төлеуiне қатысушының келiсуiмен жол берiледi. Тиiстi меншiк иесiнiң үлесi шамалы болып, нақты бөлiп шығару мүмкiн болмай және ол ортақ мүлiктi пайдалануға онша мүдделi болмаса, сот бұл меншiк иесiнiң келiсiмi болмаған күнде де үлестi меншiкке қатысушыларды оған өтем төлеуге мiндеттей алады.
5. Осы баптың 3 және 4-тармақтарына сәйкес өтем алғаннан кейiн меншiк иесi ортақ мүлiктегi үлеске құқығын жоғалтады.
6. Осы баптың 3 және 4-тармақтарында жазылған қағидалар бойынша ортақ мүлiктi бөлу немесе одан үлестi бөлiп шығару мүмкiн болмаған кезде сот мүлiктi жария сауда-саттықта сату, одан түскен соманы кейін ортақ меншiкке
қатысушылар арасында олардың үлестерiне мөлшерлес бөлiп беру туралы шешiм қабылдайды.
Ескерту. 218-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
219-бап. Ортақ бiрлескен меншiк
1. Ортақ бiрлескен меншiк: 1) ерлi-зайыптылардың ортақ меншiгi; 2) шаруа қожалығы мүшелерiнiң ортақ меншiгi; 3) жекешелендiрiлген тұрғын үйге ортақ меншiк түрiнде болады.
2. Заң құжаттарында ортақ бiрлескен меншiктiң басқа да түрлерi көзделуi мүмкiн.
3. Ортақ бiрлескен меншiк, егер оған қатысушылар арасындағы шартта өзгеше көзделмесе, тағайындалады және қолдануда болады.
Ескерту. 219-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 2007.01.12 . N 225 Заңымен.
220-бап. Бiрлескен меншiктегi мүлiктi иелену, пайдалану және оған билiк ету
1. Бiрлескен меншiкке қатысушылар, егер олардың арасындағы келiсiмде өзгеше көзделмесе, ортақ мүлiктi бiрлесiп иеленедi және пайдаланады.
2. Мүлiкке билiк ету жөнiндегi мәмiленi қатысушылардың қайсысы жасағанына қарамастан бiрлескен меншiктегi мүлiкке билiк ету барлық қатысушылардың келiсiмi бойынша жүзеге асырылады.
3. Егер барлық қатысушылардың келiсiмiнен өзгеше туындамайтын болса, бiрлескен меншiкке қатысушылардың әрқайсысы ортақ мүлiкке билiк ету жөнiнде мәмiлелер жасасуға құқылы. Бiрлескен меншiкке қатысушылардың бiреуi ортақ мүлiкке билiк етуге байланысты жасаған мәмiле басқа қатысушылардың талап етуiмен мәмiле жасаған қатысушының қажеттi өкiлеттiгi болмады деген себеппен мәмiледегi екiншi тарап бұл жөнiнде бiлгенi немесе көпе-көрiнеу бiлуге тиiс болғандығы дәлелденген ретте ғана жарамсыз деп танылуы мүмкiн.
Нотариаттың куәландыруын немесе мемлекеттiк тiркеудi керек ететiн мәмiлелер жасасу кезiнде бiрлескен мүлiкке басқа қатысушылардың мәмiле жасауға келiсiмi нотариалдық тәртiппен расталуға тиiс.
4. Егер осы Кодексте немесе өзге де заң құжаттарында бiрлескен меншiктiң жекелеген түрлерi үшiн өзгеше белгiленбесе, осы баптың 1-3-тармақтары қолданылады.
221-бап. Бiрлескен меншiктегi мүлiктi бөлу және одан үлестi бөлiп шығару
1. Ортақ меншiктi бiрлескен меншiкке қатысушылар арасында бөлу, сондай-ақ олардың бiреуiнiң үлесiн бөлiп шығару қатысушылардың әрқайсысының ортақ мүлiкке құқығындағы үлесi алдын ала анықталған жағдайда ғана жүзеге асырылуы мүмкiн.
2. Ортақ мүлiктi бөлу және одан үлестi бөлiп шығару кезiнде, егер заң актiлерiмен немесе қатысушылардың келiсiмiнде өзгеше көзделмесе, олардың үлестерi тең деп танылады.
3. Ортақ мүлiктi бөлу және одан үлестi бөлiп шығару негiздерi мен тәртiбi осы Кодекстiң 218-бабының ережелерiмен белгiленедi, өйткенi ол осы Кодекспен , басқа да заң құжаттарымен бiрлескен меншiктiң жекелеген түрлерi үшiн өзгеше белгiленбеген және бiрлескен меншiкке қатысушылар қатынастарының мәнiнен туындамайды.
Ескерту. 221-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
222-бап. Ортақ мүлiктегi үлестен ақы өндiрiп алу
1. Үлестi немесе бiрлескен меншiкке қатысушыға несие берушi қатысушыда басқа мүлiк жеткiлiксiз болған жағдайда борышқордың ортақ мүлiктегi үлесiн одан ақы өндiрiп алу үшiн бөлiп беру туралы талап қоюға құқылы.
2. Ортақ меншiктiң өзге қатысушылары борышқордың үлесiн сатып алудан бас тартқан реттерде несие берушi борышқордың ортақ меншiк құқығындағы үлесiн жария саудаға салу жолымен осы үлестен сот арқылы ақы өндiрiп алуға талап етуге құқылы.
3. Егер мұндай жағдайда үлестi заттай бөлiп шығару мүмкiн болмаса, не үлестi немесе бiрлескен меншiктiң қалған қатысушылары бұған қарсылық бiлдiрсе, несие берушi борышқордан өз үлесiн ортақ меншiктiң өзге қатысушыларына осы үлестi нарықтық құнына сәйкес бағамен сатып, сатудан түскен қаражатты борышты өтеуге салуды талап етуге құқылы.
223-бап. Ерлi-зайыптылардың ортақ меншiгi
1. Ерлi-зайыптылардың некеде тұрған кезде жинаған мүлкi, егер бұл мүлiк ерлi-зайыптылардың үлестi меншiгi болатыны, не олардың әрқайсысына тиесiлi немесе меншiк құқығында тиiстi бөлiктерде ерлi-зайыптылардың әрқайсысына тиесiлi екенi олардың арасындағы шартта көзделмесе, олардың бiрлескен меншiгi болып табылады.
2. Ерлi-зайыптылардың некеге тұрғанға дейiн тиесiлi болған, сондай-ақ олардың некеде тұрған кезiнде сыйға тартылған немесе мұрагерлiк тәртiппен алған мүлкi олардың әрқайсысының меншiгi болып табылады.
Қымбат бағалы және басқа әсемдiк заттарын қоспағанда, жеке пайдаланудағы заттар (киiм-кешек, аяқ киiм және т.б.), некеде тұрған кезде ерлi-зайыптылардың ортақ қаражатына сатып алынғанымен, оларды пайдаланған жұбайдың меншiгi деп танылады.
Егер некеде тұрған кезде ерлi-зайыптылардың ортақ мүлкiнiң есебiнен сол мүлiктiң құнын едәуiр арттырған қаражат жұмсалғаны (күрделi жөндеу, қайта жаңғырту, қайта жабдықтау және т.б.) анықталса, ерлi-зайыптылардың әрқайсысының мүлкi олардың бiрлескен меншiгi деп танылуы мүмкiн.
3. Ерлi-зайыптылардың бiрiнiң мiндеттемелерi бойынша жаза өз меншiгiндегi мүлiкке ғана, сондай-ақ бұл мүлiктi бөлiсу кезiнде ерлi-зайыптылардың бiрiне тиесiлi болатын ортақ мүлкiндегi өз үлесiне ғана қолданылуы мүмкiн.
4. Ерлi-зайыптылардың ортақ бiрлескен меншiк құқықтарының ерекшелiктерi Қазақстан Республикасының неке және отбасы туралы заңдарымен белгiленедi.
Ескерту. 223-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
224-бап. Шаруа немесе фермер қожалығының меншiгi
1. Шаруа қожалығының мүлкi, егер оның мүшелерiнiң арасындағы шартта өзгеше белгiленбесе, оларға бiрлескен меншiк құқығында тиесiлi болады.
Бiрлескен қызмет туралы шарт негiзiнде жай серiктестiк нысанында ұйымдастырылған фермер қожалығының мүлкi оның мүшелерiне ортақ үлестiк меншiк құқығында тиесiлi болады.
Өзiндiк кәсiпкерлiкке негiзделген фермер қожалығының мүлкi оған жеке меншiк құқығында тиесiлi болады.
2. Шаруа немесе фермер қожалығы мүшелерiнiң меншiгiнде жер учаскелерi, жер учаскесiндегi екпелер, оның iшiнде жеке орман қорындағы екпелер, ерiксiз және (немесе) жартылай ерiктi жағдайларда өсiрiлiп, ұсталатын жабайы жануарлар, шаруашылыққа арналған және өзге де қора-қопсылар, мелиорациялық және басқа да құрылыстар, өнiм беретiн және жегiн мал, құс,
ауыл шаруашылығына арналған және өзге де техника мен жабдықтар, көлiк құралдары, құрал-саймандар және қожалық мүшелерi берген және (немесе) қожалық үшiн оның мүшелерiнiң ортақ қаражатына сатып алынған басқа да мүлiк болуы мүмкiн.
3. Шаруа немесе фермер қожалығының қызметi нәтижесiнде алынған жемiстер, өнiм мен кiрiстер шаруа немесе фермер қожалығы мүшелерiнiң ортақ мүлкi болып табылады және олардың арасында келiсiм бойынша пайдаланылады.
Ескерту. 224-бап жаңа редакцияда - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
225-бап. Шаруа немесе фермер қожалығының мүлкiн бөлу
1. Барлық мүшелерiнiң шығып кетуiне байланысты немесе өзге де негiздер бойынша немесе фермер қожалығы тоқтатылған жағдайда ортақ мүлiк осы Кодекстiң 218 және 221-баптарында көзделген ережелер бойынша бөлiнуге тиiс.
2. Шаруа немесе фермер қожалығы мүшелерiнiң бiрi одан шыққан кезде, шаруашылықтың өндiрiс құрал-жабдықтары бөлiнуге жатпайды. Қожалықтан шыққан адамның бұл мүлiкке ортақ меншiктегi өз үлесiне сәйкес ақшалай өтем алуға құқығы бар.
3. Осы баптың 1 және 2-тармақтарында көзделген реттерде бiрлескен меншiк құқығындағы шаруа немесе фермер қожалығы мүшелерiнiң, егер олардың арасындағы келiсiмде өзгеше көзделмесе, қожалық мүлкiне үлестерi тең деп танылады.
Ескерту. 225-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12 . N 225 Заңымен.
226-бап. Шаруа немесе фермер қожалығын шаруашылық серiктестiгi немесе кооператив етiп қайта құрған кездегi мүлiктiң құқықтық режимi
1. Қожалық мүлкi негiзiнде шаруа немесе фермер қожалығының мүшелерi шаруашылық серiктестiгiн немесе өндiрiстiк кооператив құруы мүмкiн. Қайта құрылған мұндай шаруа немесе фермер қожалығының заңды тұлға ретiнде шаруа немесе фермер қожалығының мүшелерi өзiне салымдар және басқа жарналар түрiнде берген мүлiктiң, сондай-ақ оның қызметi нәтижесiнде алынған және заңдарға қайшы келмейтiн өзге де негiздер бойынша сатып алынған мүлiктiң меншiк құқығына ие болады.
2. Шаруа немесе фермер қожалығының серiктестiкке қатысушылары немесе кооператив мүшелерi болып табылатын мүшелерi салымдарының мөлшерi осы
Кодекстiң 218-бабында немесе 225-бабының 3-тармағында көзделген тәртiп бойынша белгiленетiн шаруа немесе фермер қожалығының мүлкiне ортақ меншiк құқығындағы өз үлестерiн негiзге ала отырып белгiленедi.
Ескерту. 226-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12 . № 225 Заңымен.
227-бап. Жекешелендiрiлген тұрғын үйге ортақ меншiк
Қазақстан Республикасының мемлекеттік мүлік және тұрғын үй қатынастары туралы заңнамасына сәйкес жалдаушы сатып алған немесе тегiн алған мемлекеттiк тұрғын үй қорының үйiндегi тұрғын жай, егер олардың арасындағы шартта өзгеше көзделмесе, жалдаушының және онымен бiрге тұрақты тұратын отбасы мүшелерiнiң, соның iшiнде кәмелетке толмаған және уақытша тұрмайтын мүшелерiнiң бiрлескен меншiгiне көшедi.
Жекешелендiрiлген тұрғын үйге бiрлескен меншiк құқығының ерекшелiктерi тұрғын үй қатынастары туралы заң актiлерiнде белгiленедi.
Ескерту. 227-бапқа өзгерту енгiзiлдi - ҚР 1998.03.02 № 211, 2011.03.01 № 414- IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
12-тарау. Бірлескен қызмет туралы шарт (жай серiктестiк)
228-бап. Жай серiктестiк
1. Жай серiктестiк бiрлескен қызмет туралы шарт негiзiнде құрылады. Бiрлескен қызмет туралы шарт (жай серiктестiк шарты) бойынша тараптар
табыс табу немесе заңға қайшы келмейтiн өзге де мақсатқа қол жеткiзу үшiн бiрлесiп әрекет жасауға мiндеттенедi.
Жай серiктестiк заңды тұлға болмайды. 2. Бiрлескен қызмет туралы шарт (жай серiктестiк шарты) азаматтардың,
азаматтар мен заңды тұлғалардың арасында, заңды тұлғалар арасында жасалады ( консорциум).
3. Жай серiктестiк қатысушыларының бiрлескен қызметi туралы шартқа байланысты мiндеттемелерi, егер бiрлескен қызмет туралы шартта өзгеше көзделмесе, үшiншi жақтар алдында ортақ болып табылады.
Ескерту. 228-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
229-бап. Шартқа қатысушылардың ортақ iстерiн жүргiзу Бiрлескен қызмет туралы шартқа қатысушылардың ортақ iстерiн жүргiзу
олардың ортақ келісімi бойынша жүзеге асырылады. Өзара келісу бойынша олар бiрлескен қызметке басшылық етудi және ортақ iстердi жүргiзудi, бұл жағдайда шартқа қалған қатысушылар берген сенімхат негiзiнде әрекет ететін қатысушылардың бiрiне немесе осы Кодекстің 823-бабында көзделген жағдайда үшінші тұлғаға тапсыра алады.
Ескерту. 229-бап жаңа редакцияда - ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
230-бап. Шартқа қатысушылардың ортақ мүлкi
1. Бiрлескен қызмет туралы шартқа қатысушылар өз мақсаттарына жету үшiн жарналарын ақшалай немесе басқа мүлiкпен, не еңбек үлесi арқылы қосады.
2. Шартқа қатысушылардың ақшалай немесе өзге де мүлiктiк жарналары, сондай-ақ олардың бiрлескен қызметi нәтижесiнде жасалған немесе сатып алынған мүлiк олардың ортақ үлестi меншiгi болып табылады.
3. Алынып тасталды - ҚР 1998.03.02 N 211 Заңымен. 4. Шартқа қатысушылардың мүлкiне осы Кодекстiң ортақ үлестi меншiк
туралы қалыптары қолданылады, егер осы тараудың нормаларында өзгеше көзделмесе, басқа заң актiлерiмен немесе бiрлескен қызмет туралы шартпен.
Ескерту. 230-бапқа өзгеріс енгiзiлдi - ҚР 1998.03.02 N 211 Заңымен.
231-бап. Шартқа қатысушылардың ортақ шығындары мен залалдары
Бiрлескен қызметi бойынша ортақ шығындарды және соның нәтижесiнде пайда болған залалдарды жабу тәртiбi қатысушылардың шартымен белгiленедi. Егер шартта мұндай тәртiп көзделмесе, ортақ шығындар мен залалдар шартқа қатысушылардың ортақ мүлкi есебiнен жабылады, ал жетпей қалған сомалар олардың арасында осы мүлiктегi үлестерiне қарай бөлiнiп салынады.
Ескерту. 231-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
232-бап. Бiрлескен қызметке қатысу құқығын беру және қатысудан бас тарту
1. Бiрлескен қызметке қатысу құқығын беру бiрлескен қызмет туралы шартқа (жай серiктестiк шартына) қатысушылардың келiсiмiмен ғана жүзеге асырылуы мүмкiн.
2. Бiрлескен қызмет туралы шартқа (жай серiктестiк шартына) қатысушы өз қалауы бойынша бiрлескен қызметке қатысудан бас тартуға құқылы.
3. Бiрлескен қызметке қатысушылардың қайсы бiреуiнiң қатысудан бас тартуы салдарынан келтiрiлген залалдар, егер бiрлескен қызмет туралы шартта ( жай серiктестiк шартында) өзгеше көзделмесе, толық көлемiнде өндiрiлiп алынады.
233-бап. Консорциум
1. Консорциум - бiрлескен шаруашылық қызмет туралы шарт негiзiнде заңды тұлғалар нақты шаруашылық мiндеттерiн шешу үшiн белгiлi бiр ресурстарды бiрiктiрiп, күш-жiгердi үйлестiретiн ерiктi түрде тең құқықты уақытша одақ ( бiрлестiк).
2. Консорциумға қатысушылар өздерiнiң шаруашылық дербестiгiн сақтап қалады және басқа консорциумдардың, қауымдастықтардың қызметiне қатыса алады.
Консорциумға қатысушылардың арасындағы қатынастар шарт негiзiнде құрылады.
3. Консорциумды басқару консорциумға қатысушылардың консорциалдық келiсiмiне сәйкес жүзеге асырылады.
4. Консорциумға қатысушылар, егер консорциалдық келiсiмде өзгеше ескертiлмесе, консорциум қызметiне байланысты мiндеттемелер бойынша ортақ жауапты болады.
5. Консорциум өз қызметiн алдына қойған мiндеттерiн орындағаннан кейiн немесе оған қатысушылардың шешiмi бойынша тоқтатады.
Ескерту. 233-бапқа өзгерту енгiзiлдi - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
234-бап. Бiрлескен қызметтiң жекелеген түрлерi туралы ережелер
Бiрлескен қызметтiң жекелеген түрлерi осы Кодекске Қазақстан Республикасының заңдарына сәйкес реттеледi.
13-тарау. Меншік құқығына және өзге де заттық құқықтарға ие болу
235-бап. Меншiк құқығына ие болу негiздерi
1. Егер шартта немесе заңдарда өзгеше көзделмесе, жаңа затқа меншiк құқығы оны дайындаған немесе жасаған тұлғаға тиедi.
Мүлiктi пайдалану нәтижесiнде алынған жемiстерге, өнiмге, табысқа меншiк құқығы осы Кодекстiң 123-бабына сәйкес алынады.
2. Меншiк иесi бар мүлiкке меншiк құқығына басқа адам сатып алу-сату, айырбастау, сыйға тарту немесе осы мүлiктi иелiктен айыру туралы өзге мәмiленiң негiзiнде ие болуы мүмкiн.
Азамат қайтыс болған ретте оған тиесiлi мүлiкке меншiк құқығы өсиетке немесе заңға сәйкес мұрагерлiк бойынша басқа адамдарға көшедi.
Заңды тұлға қайта ұйымдастырылған ретте оған тиесiлi мүлiкке меншiк құқығы қайта құрылған заңды тұлғаның құқықты мирасқорларына - заңды тұлғаларға көшедi (осы Кодекстiң 46-бабы).
Меншiк иесiнiң мүлкiн меншiк иесiнiң еркiнен тыс басқа тұлғаға беруге осы Кодексте көзделгеннен басқа реттерде жол берiлмейдi.
3. Осы Кодексте көзделген реттер мен тәртiп бойынша тұлға меншiк иесi жоқ мүлiкке, меншiк иесi белгiсiз мүлiкке, не меншiк иесi бас тартқан немесе өзге негiздер бойынша ол меншiк құқығын жоғалтқан мүлiкке меншiк құқығын алуы мүмкiн.
3-1. Мемлекет Қазақстан Республикасының заңдарында көзделген жағдайларда және тәртіппен жер учаскесін реквизициялау, мемлекет меншігіне алу, оның ішінде мемлекет мұқтажы үшін мәжбүрлеп алып қою кезінде, сондай-ақ жер учаскесін алып қоюға байланысты жылжымайтын мүлікті иеліктен шығару кезінде мүлікке меншік құқығына ие болады.
4. Тұтыну (тұрғын үй, тұрғын үй-құрылыс, саяжай, гараж немесе өзге) кооперативiнiң мүшелерi, жарна жинақтауға құқығы бар, пәтер, саяжай, гараж және кооператив осы адамдардың пайдалануына берген өзге де үй-жай үшiн өзiнiң үлестiк жарнасын толық төлеген басқа да адамдар аталған мүлiктiң меншiк құқығына ие болады.
Ескерту. 235-бапқа өзгерту енгiзiлдi - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
236-бап. Жаңадан жасалып жатқан қозғалмайтын мүлiкке меншiк құқығының пайда болуы
1. Жаңадан тұрғызылған жылжымайтын мүлiкке меншiк құқығы мемлекеттік тіркеу кезінен бастап туындайды.
2. Егер заң құжаттарында немесе шартта құрылысы аяқталған объектiлердi қабылдап алу көзделген болса, онда тиiстi мүлiктi жасау осылайша қабылдап алынған кезден бастап аяқталған болып есептеледi.
3. Алып тасталды - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
4. Жаңадан тұрғызылған жылжымайтын мүлiкке құқықты мемлекеттік тіркеу кезіне дейін мүлікке материалдар мен жылжымайтын мүлік тұрғызылатын басқа мүлікке меншік құқығы туралы қағидалар қолданылады.
Ескерту. 236-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
237-бап. Өңдеу
1. Шартта өзгеше көзделмегендiктен, адам өзiне тиесiлi емес материалдарды өңдеу арқылы дайындаған жаңа қозғалатын затқа меншiк құқығын материалдардың меншiк иесi алады.
Алайда, егер өңдеу құны материалдардың құнынан едәуiр асып кетсе, жаңа затқа меншiк құқығын адал жұмыс iстеп, өңдеудi өзi үшiн жүзеге асырған адам алады.
2. Егер шартта өзгеше көзделмесе, өз материалдарынан дайындалған затқа меншiк құқығын алған материалдардың меншiк иесi ол затты өңдеудi жүзеге асырған адамға оның құнын өтеуге, ал ол адам жаңа затқа меншiк құқығын алған ретте соңғысы материалдардың меншiк иесiне олардың құнын қайтаруға мiндеттi .
3. Өңдеудi жүзеге асырған адамның ықылассыз әрекеттерiнiң нәтижесiнде материалынан айрылған меншiк иесi жаңа затты өз меншiгiне берудi және өзiне келтiрiлген залалдардың орнын толтыруды талап етуге құқылы.
238-бап. Шарт бойынша мүлiк алушының меншiк құқығы пайда болатын кез
1. Шарт бойынша мүлiк алушының меншiк құқығы, егер заң құжаттарында немесе шартта өзгеше көзделмесе, зат берiлген кезден бастап пайда болады.
1-1. Егер шарт бойынша мүлікті иеленушінің меншік құқығы мемлекеттік тіркелуге жататын болса, онда мүлікті иеленушінің меншік құқығы, егер заңнамалық актілерде өзгеше көзделмесе, осындай тіркеу жасалған кезден бастап туындайды.
2. Егер мүлiктi иелiктен айыру туралы шарт мемлекеттiк тiркеуге немесе нотариалдық куәландыруға жататын болса, алушының меншiк құқығы тiркелген
немесе нотариат куәландырған кезден бастап, ал шартты нотариаттың куәландыруы да, мемлекеттiк тiркеу де қажет болған жағдайда ол тiркелген кезден бастап пайда болады.
Ескерту. 238-бапқа өзгеріс енгiзiлдi - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
239-бап. Заттардың берiлуi
1. Заттардың алушыға тапсырылуы, сол сияқты, егер заңдарда немесе шартта өзгеше көзделмесе, алушыға жөнелту үшiн көлiк ұйымына өткiзу және иелiктен айырылған заттарды жеткiзiп беру мiндеттемесiнсiз алушыға салып жiберу үшiн почтаға өткiзу-берiлу деп танылады.
2. Егер затты иелiктен айыру туралы шартты жасасу кезiнде-ақ ол алушының иелiгiнде болса, зат оған сол кезден бастап берiлген деп танылады. Затқа коносамент немесе өзге де өкiмшi құжат беру заттарды беруге теңестiрiледi.
240-бап. Иелену мерзiмi
1. Мүлiктiң меншiк иесi болып табылмайтын, бiрақ өзiнiң жеке қозғалмайтын мүлкiндей жеті жыл бойы, не өзге мүлiктi кем дегенде бес жыл адал, ашық және ұдайы иеленген азамат немесе заңды тұлға ол мүлiкке меншiк құқығын (иелену мерзiмiн) алады.
Мемлекеттiк тiркеуге жататын қозғалмайтын және өзге де мүлiкке меншiк құқығы бұл мүлiктi иелену мерзiмiне сәйкес алған тұлғада осындай тiркеу кезiнен бастап пайда болады.
2. Мүлiкке меншiк құқығын алғанға дейiн оларды өз мүлкiндей иеленушi азамат немесе заңды тұлға өз иелiгiн мүлiктiң меншiк иелерi болып табылмайтын , сондай-ақ заң құжаттарында немесе шартта көзделген өзге де негiздерге сәйкес оларды иеленуге құқығы жоқ үшiншi жақтардан қорғауға құқылы.
3. Иелену мерзiмiне жүгiнетiн азамат немесе заңды тұлғаның өздерi құқықты мирасқорлары болып табылатын тұлғаның осы затқа иелiк еткен уақытының бәрiн өз иелiгiне қосып алуына болады.
4. Иелену мерзімінің өтуі затты иеленген кезден басталады. 5. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан
кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен. Ескерту. 240-бапқа өзгеріс енгiзiлдi - ҚР 2011.03.25 N 421-IV (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2011.07.22 № 479-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн
өткен соң қолданысқа енгізіледі) Заңдарымен.
241-бап. Жинауға не аулауға арналған көпшiлiк қолды заттарды меншiкке айналдыру
Заңдарға, жергiлiктi әдет-ғұрыпқа немесе меншiк иесi берген жалпы рұқсатқа сәйкес ормандарда, бөгендерде немесе басқа аумақта жидек теруге, балық аулауға, аң аулауға, басқа нәрселердi жинауға немесе аулауға жол берiлген ретте, тиiстi заттарға меншiк құқығын оларды жинауды және аулауды жүзеге асырған адам алады.
242-бап. Иесiз заттар
1. Меншiк иесi жоқ немесе меншiк иесi белгiсiз зат не меншiк иесi оның меншiк құқығынан бас тартқан зат иесiз болып табылады.
2. Егер меншiк иесi бас тартқан заттарға меншiк құқығын алу туралы (осы Кодекстiң 243-бабы), олжа туралы (осы Кодекстiң 245-бабы), қараусыз жануарлар туралы (осы Кодекстiң 246-бабы) және қазына (осы Кодекстiң 247- бабы) туралы ережелер терiске шығармаса, иелену көнелiгiне (осы Кодекстiң 240 -бабы) сәйкес иесiз қозғалмалы заттарға меншiк құқығы алынуы мүмкiн.
3. Иесi жоқ жылжымайтын заттарды олар табылған аумақтағы республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарының өтініші бойынша жылжымайтын мүлiктi мемлекеттiк тiркеудi жүзеге асыратын орган есепке алады. Жергілікті атқарушы орган иесi жоқ жылжымайтын зат есепке алынған күннен бастап бiр жыл өткен соң бұл затты коммуналдық меншiкке түстi деп тану туралы талап қойып сотқа жүгiнеді.
Егер меншік иесі бұл туралы жариялау арқылы меншік құқығынан бас тартқан жағдайда, жергілікті атқарушы орган бас тарту туралы жарияланған кезден бастап бұл затты коммуналдық меншiкке түстi деп тану туралы талаппен сотқа жүгiнеді.
Коммуналдық меншікке түскен мүлікті есепке алу, сақтау, бағалау, одан әрі пайдалану және өткізу жөніндегі жұмыстарды ұйымдастыруды жергілікті атқарушы орган жүзеге асырады.
Осындай мүлікті өзінің меншігі ретінде иеленетін азаматтардағы немесе мемлекеттік емес заңды тұлғалардағы иесі жоқ жылжымайтын заттар есепке алынбайды және коммуналдық меншікке берілмейді.
Мемлекеттік меншікке түскен мүлікті есепке алу, сақтау, бағалау, одан әрі пайдалану және өткізу тәртібін Қазақстан Республикасының Үкіметі айқындайды .
Осындай мүлікке басқа тұлғаның меншік құқығы туындағанға дейін кез келген уақытта меншік иесі өзіне тиесілі жылжымайтын затты иесі жоқ зат ретінде есептен шығару туралы өтініш жасауға және оны өзінің іс жүзіндегі иелігіне қайта алуға құқылы.
Ескерту. 242-бапқа өзгерту енгізілді - ҚР 2001.12.24 № 276 (2002.01.01 бастап қолданысқа енгізіледі), 2004.12.20. № 13 (2005.01.01 бастап қолданысқа енгізіледі), 2006.06.22. № 147, 2007.01.12 № 225, 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі), 2011.07.22 № 479-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
243-бап. Меншiк иесi бас тартқан жылжымалы заттар
1. Меншiк иесi тастаған немесе оларға меншiк құқығынан бас тарту мақсатымен өзгеше түрде қалдырып кеткен жылжымалы заттар (тасталған заттар ) осы баптың 2-тармағында көзделген тәртiппен басқа адамдардың өз меншiгiне айналдырылуы мүмкiн.
2. Меншiгiнде, иелiгiнде немесе пайдалануында құны жиырма айлық есептiк көрсеткiшке сәйкес сомадан көрiнеу төмен тасталған мүлiк не тасталған металл сынықтары, жарамсыз өнiм жатқан жер учаскесi бар адамның ол заттарды пайдалануға кiрiсiп немесе осы заттарды меншiгiне қаратқандығына куә болатын өзге де iс-әрекет жасап, оларды өз меншiгiне айналдыруға құқығы бар.
Басқа тасталған заттар, егер осы адамның арызы бойынша оларды сот иесiз деп таныса, оларды иеленуге кiрiскен тұлғаның меншiгiне кiредi.
Ескерту. 243-бап жаңа редакцияда - Қазақстан Республикасының 1998.03.02. № 211 Заңымен.
244-бап. Өз бетiмен салынған құрылыс
1. Мемлекетке тиесілі, жер учаскелері болып қалыптаспаған жерде, құрылысты жүзеге асырған тұлғаға тиесілі емес жер учаскесінде салынған, сондай-ақ бұл үшін Қазақстан Республикасының жер заңнамасына, Қазақстан Республикасындағы сәулет, қала құрылысы және құрылыс қызметі туралы
заңнамаға және Қазақстан Республикасының өзге де заңнамасына сәйкес қажетті рұқсат алынбай салынған тұрғын үй, басқа да құрылыс, ғимарат немесе өзге де жылжымайтын мүлік өз бетінше салынған құрылыс болып табылады.
2. Өз бетiмен құрылыс салуды жүзеге асырған адам оған меншiк құқығын алмайды. Оның құрылысқа билiк етуге - сатуға, сыйға тартуға, жалға беруге, басқа да мәмiлелер жасауға - құқығы жоқ.
Өз бетiмен салынған құрылыс, осы баптың 3 және 4-тармақтарында көзделгеннен басқа реттерде, оны жүзеге асырған адамның есебiнен бұзылуға тиiс.
3. Өзiне тиесiлi емес жер учаскесiне құрылысты жүзеге асырған адамға бұл учаске салынған құрылысты орналастыру үшiн осы адамға белгiленген тәртiп бойынша берiлген жағдайда ғана өз бетiмен салынған құрылысқа меншiк құқығы танылады.
Құрылыс салушының өзiне тиесiлi емес жер учаскесiнде, мемлекетке тиесілі жерлерді қоспағанда, өз бетімен құрылыс салуға меншік құқығын сот Қазақстан Республикасының сәулет, қала құрылысы және құрылыс қызметі туралы заңнамасының талаптарына құрылыс сәйкес келген жағдайда жер учаскесі иесіне өтемақы төлене отырып, соңғысының бұған келісімі болған кезде тануы мүмкін.
Сот сондай-ақ құрылыс салынған жер учаскесi өзiнiң заңды пайдалануында болған адамның өз бетiмен салынған құрылысқа меншiк құқығын тануы мүмкiн. Бұл ретте құрылысқа меншiк құқығы танылған адам оны жүзеге асырған адамды сот белгiлеген мөлшерде құрылысқа жұмсаған шығындарын өтейдi.
Егер құрылысты сақтап қалу басқа адамдардың құқықтарын және заңмен қорғалатын мүдделерiн бұзуға әкелiп соқтырса не азаматтардың өмiрi мен денсаулығына қауiп төндiретiн болса, аталған адамдардың өз бетiмен салынған құрылысқа меншiк құқығын тануға болмайды.
4. Мемлекетке тиесілі және жер пайдалануындағы емес жер учаскелерінде ( жер учаскелері болып қалыптаспаған жерде) тұлға өз бетінше тұрғызған құрылыс әлеуметтiк-экономикалық тұрғыдан орындылығы ескерiле отырып, құрылыс шығындары сот айқындаған мөлшерде өтеліп, коммуналдық меншiкке берiледі.
Мемлекеттік жер пайдаланушылардың жер пайдалануындағы жер учаскесінде өз бетінше құрылыс салуды жүзеге асырған кезде өз бетінше салынған құрылыс әлеуметтiк-экономикалық тұрғыдан орындылығы ескерiле отырып, құрылыс шығындары сот айқындаған мөлшерде бюджет қаражатынан өтеліп, коммуналдық меншiкке берiледі.
Ескерту. 244-бапқа өзгеріс енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі), 2012.04.27 N 15-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа
енгізіледі) Заңдарымен.
245-бап. Олжа
1. Жоғалған затты тауып алушы бұл туралы оны жоғалтқан адамға немесе заттың меншiк иесiне немесе оны алуға құқығы бар өзiне белгiлi басқа адамдардың бiреуiне дереу хабарлауға және табылған затты оған қайтаруға мiндеттi.
Егер зат үй-жайдың iшiнде немесе көлiкте табылған болса, ол сол үй-жайдың немесе көлiктiң иесi болып табылатын адамға тапсырылуға тиiс. Мұндай ретте осы иеленушi затты тапқан адамның құқықтарын иеленiп, оның мiндеттерiн мойнына алады.
2. Егер табылған затты алуға құқығы бар адамның өзi немесе оның тұрған жерi белгiсiз болса, затты тауып алушы олжа туралы iшкi iстер органдарына немесе республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарына мәлiмдеуге мiндеттi.
3. Затты тауып алушы оны өзiнде сақтауға не iшкi iстер органдарының, республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарының немесе олар көрсеткен адамның сақтауына тапсыруға құқылы. Тез бұзылатын затты немесе сақтауға кететiн шығындар оның құнына сәйкес келмейтiн затты тауып алушы түсiм сомасын растайтын жазбаша дәлелдемелер алып, сата алады. Табылған затты сатудан түскен ақша сақталуға және затты алуға заңды құқығы бар адамға қайтарылуға немесе бұл заттың өзi үшiн белгiленген тәртiп пен жағдайларда басқа адамдардың меншiгiне берiлуге тиiс.
Затты тауып алушы оның жоғалтқаны немесе бүлдiргенi үшiн өзiнiң жасыру ниетi болған немесе өрескел абайсыздық жасаған ретте ғана және сол заттың құны шегiнде жауапты болады.
4. Егер олжа туралы iшкi iстер органдарына немесе республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарына мәлiмденген кезден бастап алты ай өткенше жоғалған затты алуға заңды құқығы бар адам анықталмаса және затқа өзiнiң құқығы туралы оны тапқан адамға не iшкi iстер органдарына немесе республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарына мәлiмделмесе, затты тауып алушы оған меншiк құқығын алады.
Егер затты тауып алушы тапқан затын меншiгiне алудан бас тартса, ол коммуналдық меншiкке өтедi.
5. Затты тауып алушы және оны алуға заңды құқығы бар адамға қайтарып берушi ол адамнан, ал зат коммуналдық меншiкке өткен ретте - тиiстi жергiлiктi атқару органынан затты сақтауға, өткiзуге, сатуға байланысты қажеттi шығындарды және затты алуға заңды құқығы бар адамды табуға кеткен шығындарды өтетiп алуға құқылы.
6. Затты тауып алушы затты алуға заңды құқығы бар адамнан зат құнының отыз процентi мөлшерiнде сыйақы алуға құқылы. Егер табылған зат оны алуға заңды құқығы бар адам үшiн ғана құнды болса, сыйақының мөлшерi тараптар есептеп шығарған баға бойынша белгiленедi.
Егер затты тауып алушы өзiнiң олжа туралы мәлiмдеу мiндетiн орындамаса немесе олжаны жасырып қалуға өзге де әрекеттер жасаса, сыйақы алу құқығы туындамайды.
Ескерту. 245-бапқа өзгерту енгізілді - ҚР 2004.12.20 N 13 (2005.01.01 бастап қолданысқа енгізіледі), 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
246-бап. Қараусыз жануарлар
1. Қараусыз немесе қаңғып жүрген малды және басқа да үй жануарларын немесе қолға үйретiлген жануарларды ұстап алған адам оларды меншiк иесiне қайтаруға, ал егер оның өзi немесе тұрған жерi белгiсiз болса, осындай жануарларды ұстаған кезден бастап үш күннен кешiктiрмей табылған жануарлар туралы iшкi iстер органдарына немесе республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарын мәлiмдеуге мiндеттi, олар меншiк иесiн iздестiру шараларын қолданады.
Жануарлардың меншiк иесiн iздестiру кезеңiнде жануарларды ұстаушы адам оларды өзiнiң бағуында және пайдалануында қалдыруы, не ол бағу мен пайдалану үшiн қажеттi жағдайы бар басқа адамға тапсыруы мүмкiн. Жануарларды ұстап алған адамның өтiнiшi бойынша оларды бағу мен пайдалану үшiн қажеттi жағдайы бар адамды iздеп табуды және оларға жануарларды берудi республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдары жүзеге асырады.
2. Жануарларды ұстап алған адам және олар бағуы мен пайдалануына берiлген адам жануарлардың өлiм-жiтiмi мен iске жарамай қалғаны үшiн бұған
кiнәсi болған кезде ғана және сол жануарлардың құны мөлшерiнде жауапты болады.
3. Егер жұмыс малы мен iрi қараны ұстап алғаны туралы мәлiмделген кезден бастап алты ай iшiнде және басқа үй жануарлары жөнiнде - екi ай iшiнде олардың меншiк иесi табылмаса және оларға өзiнiң құқығы туралы мәлiмдемесе, бұл жануарларға меншiк құқығы жануарларды баққан және пайдаланған адамға көшедi.
Бұл адам бағуында болған жануарларды меншiгiне алудан бас тартқан жағдайда олар коммуналдық меншiкке түседi және республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың тиісті жергілікті атқарушы органдары белгiлейтiн тәртiп бойынша пайдаланылады.
4. Жануарларды меншiк иесiне қайтарған ретте жануарларды ұстап алған адам және жануарларды бағып, пайдаланып келген адам сол меншiк иесiнен жануарларды пайдаланудан алынған пайданы есепке жатқыза отырып, оларды бағуға байланысты өз шығындарына өтем алуға құқылы.
5. Қараусыз немесе қаңғып жүрген малды және басқа да үй жануарларын немесе қолға үйретiлген жануарларды ұстап алған адам олардың меншiк иесiнен осы Кодекстiң 245-бабының 6-тармағына сәйкес сыйақы төлеудi талап етуге құқылы.
6. Жануарлар басқа адамның меншiгiне көшкеннен кейiн олардың бұрынғы меншiк иесi келген ретте сол жануарлардың өзiне үйiрсектiгi сақталғанын немесе жаңа меншiк иесiнiң оларға қатал не өзгедей мейiрiмсiз қарағанын дәлелдейтiн жағдайлар болған кезде меншiк иесi жаңа меншiк иесiмен келiсiм бойынша белгiленетiн шарттармен, ал келiсiмге келмеген кезде - сот арқылы оларды өзiне қайтарып берудi талап етуге құқылы.
Ескерту. 246-бапқа өзгерту енгізілді - ҚР 2004.12.20 N 13 (2005.01.01 бастап қолданысқа енгізіледі), 2007.01.12. N 225, 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
247-бап. Көмбе
1. Көмбе, яғни жерге көмiлген немесе басқа әдiспен жасырылған, меншiк иесiн анықтау мүмкiн болмайтын не Қазақстан Республикасының заңнамасына сәйкес оларға құқығынан айрылған ақша немесе өзге де бағалы заттар көмбе жасырылған жер учаскесi меншік иесінің немесе қозғалмайтын затты меншiктенушiнiң және көмбенi тапқан адамның, егер олардың арасындағы шартта өзгеше белгiленбесе, меншiгiне тең мөлшерде түседi.
Көмбе жасырылған жер учаскесiн пайдаланушының (жер пайдаланушының) немесе жылжымайтын затты меншiктенушiнiң келiсiмiнсiз қазған немесе бағалы заттар iздестiрген адам көмбенi тауып алған жағдайда көмбе меншiк иесiне берiлуге тиiс.
2. Мәдени құндылықтарға жататын заттардан тұратын көмбе табылған ретте олар Қазақстан Республикасының меншiгiне берiлуге тиiс. Бұл орайда ондай көмбе табылған жер учаскесінің меншік иесі немесе қозғалмайтын мүлiктi меншiктенушi және көмбенi тапқан адам осы көмбе құнының елу процентi мөлшерiнде сыйақы алуға құқылы. Сыйақы бұл адамдар арасында осы баптың 1- тармағында көзделген ережелер қолданыла отырып бөлiнедi.
Ескерту. 247-бапқа өзгерту енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
248-бап. Меншiк иесiнен алынған мүлiктi иелену
Егер адам заң құжаттарында белгiленген тәртiп пен жағдайлар бойынша меншiк иесiнен заңды негiздерде алынған мүлiктi иеленсе, бұл адам мүлiкке меншiк құқығына ие болады.
14-тарау. Меншік құқығы мен өзге де заттық құқықтардың тоқтатылуы
249-бап. Меншiк құқығының тоқтатылу негiздерi
1. Меншiк құқығы меншiк иесi өз мүлкiн басқа адамдарға берген, меншiк иесi меншiк құқығынан бас тартқан, мүлiк қираған немесе жойылған және заң құжаттарында көзделген өзге де реттерде мүлiкке меншiк құқығынан айрылған жағдайда тоқтатылады.
2. Мүлiктi меншiк иесiнен мәжбүрлеп иеліктен шығаруға жол берiлмейдi, бұған мына реттер:
1) меншiк иесiнiң мiндеттемелерi бойынша мүлiкке өндiрiлiп алынған ақы айналымға түскен;
2) Қазақстан Республикасының заңнамалық актілеріне сәйкес белгiлi бiр адамға тиесiлi бола алмайтын мүлiктi ықтиярсыз иелiктен айырған;
3) реквизицияланған; 4) тәркiлеген; 5) жер учаскесiн алып қоюға байланысты қозғалмайтын мүлiктi мәжбүрлеп
иеліктен шығарған; 6) күтiмсiз ұсталған тарих және мәдениет ескерткіштерін, мәдени
құндылықтарды алып қойған;
7) мемлекет меншігіне алып қойған; 8) осы Кодекстің 218-бабына сәйкес ортақ мүлiктi бөлу не одан үлестi бөлiп
шығару мүмкiн болмаған жағдайда соттың шешімі бойынша жария саудада мүлікті сатқан реттер кірмейді.
3. Мемлекеттік меншіктегі мүлік: 1) азаматтар мен заңды тұлғаларға Қазақстан Республикасының мемлекеттік
мүлік туралы заңнамалық актісінде көзделген жағдайларда, шарттарда және тәртiппен;
2) мемлекеттік меншік объектілерін заңды тұлғалардың жарғылық капиталдарын төлеуге (қалыптастыруға немесе ұлғайтуға) беру арқылы;
3) Қазақстан Республикасының заңдарында тікелей көзделген өзге де жағдайларда иеліктен шығарылып, жеке меншікке беріледі.
3-1. Қазақстан Республикасының заңдарына сәйкес тек мемлекеттік меншікте ғана болатын мүлік, сондай-ақ мемлекеттік меншіктегі және Қазақстан Республикасы Президентінің актілеріне сәйкес иеліктен шығаруға жатпайтын мүлік иеліктен шығару объектісі бола алмайды.
4. Азаматтар мен заңды тұлғалардың жеке меншiгiндегi мүлiктi мемлекеттiк меншiкке айналдыру туралы Қазақстан Республикасының Заңы қабылданған ретте (ұлт меншiгiне алу) осы Кодекстiң 266-бабында белгiленген тәртiп бойынша оларға шығындары өтеледi.
Ескерту. 249-бапқа өзгерістер енгізілді - ҚР 2008.12.11 № 102-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 27.02.2017 № 49-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
250-бап. Меншiк құқығынан бас тарту
Азамат немесе заңды тұлға өзiне тиесiлi мүлiкке меншiк құқығынан бас тарта алады, бұл жөнiнде ол ауызша немесе жазбаша нысанда жариялайды не бұл мүлікке қандай да болсын құқықтарын сақтау ниетінсіз өзінің мүлікті иеленуден, пайдаланудан және оған билік етуден шеттетілетіні туралы айқын куәландыратын басқа әрекеттер (әрекетсіздік) жасайды.
Меншiк құқығынан бас тарту құқыққа сыйымды, ерікті болуға және онда меншік иесінің мүлікті иеленуден, пайдаланудан, оған билік етуден бас тартатыны көрсетілуге тиіс.
Меншiк құқығынан бас тарту меншік иесінің ерікті білдіруі болып табылады. Заңда белгіленген жағдайларды қоспағанда, мемлекеттің және оның органдарының меншік құқығынан бас тартуға құқығы жоқ.
Меншiк құқығынан бас тарту осы мүлiкке басқа тұлға меншiк құқығын иеленген кезге дейiн тиiстi мүлiкке қатысты меншiк иесiнiң құқықтары мен мiндеттерiн тоқтатуға алып келмейді.
Ескерту. 250-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
251-бап. Меншiк иесi мүлкiнен ақы өндiрiп алу
1. Егер Қазақстан Республикасының заңнамалық актілерінде немесе шартта өзгеше көзделмесе, меншiк иесiнiң мiндеттемелерi бойынша мүлiкке өндiрiп алуды қолдану сот тәртiбiмен жүргiзiледi.
2. Ақы өндiрiлiп алынатын мүлiкке меншiк иесiнiң меншiк құқығы заңдарда көзделген тәртiп бойынша меншiк құқығы көшетiн адамның алып қойылған мүлiкке меншiк құқығы пайда болған кезден бастап тоқтатылады.
Ескерту. 251-бапқа өзгерістер енгізілді - ҚР 1998.03.02. N 211; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
252-бап. Заң құжаттарына сәйкес өзiне тиесiлi бола алмайтын мүлiкке адамның меншiк құқығының тоқтатылуы
1. Егер заң құжаттарымен жол берiлетiн негiздер бойынша заң құжаттарына сәйкес адамның өзiне тиесiлi бола алмайтын мүлiк оның меншiгiнде болып шықса, бұл мүлiктi меншiк иесi, егер заң құжаттарында өзге мерзiмдер белгiленбесе, осы мүлiкке меншiк құқығы пайда болған кезден бастап бiр жыл iшiнде иелiктен айыруға тиiс. Егер меншiк иесi мүлiктi көрсетiлген мерзiмде иелiктен айырмаса, ол сот шешiмiмен иелiктен ықтиярсыз айырылуға тиiс, бұл орайда меншiк иесiне мүлiктi иелiктен айыру жөнiндегi шығындары шегерiлiп, оның құны өтеледi.
2. Егер азаматтың немесе заңды тұлғаның меншiгiнде заң құжаттарымен жол берiлген негiздер бойынша сатып алуға арнайы рұқсат қажет етiлетiн зат азаматтың немесе заңды тұлғаның меншiгiнде болып шықса, ал меншiк иесiне оны беруден бас тартылса, бұл зат осы меншiк иесiне тиесiлi бола алмайтын мүлiк үшiн белгiленген тәртiп бойынша иелiктен айырылуға тиiс.
253-бап. Реквизициялау
1. Дүлей апаттар, авариялар, жұқпалы аурулар, iндеттер, соғыс жағдайындағы іс-қимыл кезеңінде немесе соғыс уақытында және төтенше сипаттағы өзге де
жағдайлар болған ретте мүлiк қоғам мүддесi үшiн мемлекеттiк органдар шешiмi бойынша Қазақстан Республикасының заңдарында белгiленген тәртiп пен жағдайларда меншiк иесiнен оған мүлiктiң құны төлене отырып алып қойылуы мүмкiн (реквизиция).
2. Меншiк иесiне реквизицияланған мүлiктiң құны өтелген бағаны оның сот тәртiбiмен даулауына болады.
3. Мүлкi реквизицияланған адам реквизиция жүргiзуге байланысты жағдайлар тоқтатылған кезде сақталған мүлiктi өзiне қайтарып берудi сот арқылы талап етуге құқылы.
Ескерту. 253-бапқа өзгерту енгізілді - ҚР 1998.03.02 N 211, 2011.03.01 N 414- IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
254-бап. Тәркілеу
Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайларда, мүлiк меншiк иесiнен әкімшілік немесе қылмыстық құқық бұзушылық жасағаны үшiн санкция түрiнде сот тәртiбiмен өтеусіз алып қойылуы (тәркiленуі) мүмкiн.
Ескерту. 254-бап жаңа редакцияда - ҚР 03.07.2014 № 227-V Заңымен ( 01.01.2015 бастап қолданысқа енгізіледі).
255-бап. Жер учаскесін және басқа да табиғи ресурстарды алып қоюға байланысты жылжымайтын-мүлікке меншік құқығының тоқтатылуы
Ескерту. 255-баптың тақырыбы жаңа редакцияда - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Мемлекеттiк органның меншiк иесiнен мүлiктi алып қоюға тiкелей бағытталмаған шешiмiне, соның iшiнде меншiк иесiне тиесiлi үй, өзге де қора-қопсы, құрылыстар немесе өсiмдiктер бар жер учаскесiн алып қою туралы шешiмiне байланысты қозғалмайтын мүлiкке меншiк құқығының заң құжаттарымен белгiленген реттер мен тәртiп бойынша ғана меншiк иесiне құны тең мүлiк берiп және өзге де келтiрiлген залалдарын өтей отырып немесе меншiк құқығының тоқтатылуынан келтiрiлген залалдарын толық көлемiнде өтей отырып тоқтатылуына жол берiледi.
2. Меншiк иесi меншiк құқығын тоқтатуға әкелiп соқтыратын шешiммен келiспеген жағдайда оны дау сот тәртiбiмен шешiлгенге дейiн жүзеге асыруға
болмайды. Дауды қарау кезiнде меншiк иесiне келтiрiлген залалдарды өтеудiң барлық мәселелерi де шешiледi.
3. Осы баптың ережелерi мемлекеттiк органның мүлiк орналасқан тау баурайларын, су айдыны учаскелерiн және басқа учаскелердi алып қою туралы шешiмiне байланысты тиiсiнше қозғалмайтын мүлiкке меншiк құқығы тоқтатылған кезде қолданылады.
Ескерту. 255-бапқа өзгеріс енгiзiлдi - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
256-бап. Күтiмсiз ұсталған тарих және мәдениет ескерткіштерін, мәдени құндылықтарды алып қою
Ескерту. 256-баптың тақырыбы жаңа редакцияда - ҚР 2011.03.01 N 414-IV Заңымен (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі).
Қазақстан Республикасының заңнамасына сәйкес ерекше бағалы әрi мемлекет қорғайтын тарих және мәдениет ескерткіштерінің, мәдени құндылықтардың меншiк иесi бұл ескерткіштер мен құндылықтарды күтiп ұстамай, бұл олардың өз мәнiн жоғалту қатерiн төндiрген реттерде мұндай қазыналарды мемлекет меншiк иесiнен сот шешiмi бойынша сатып алу арқылы алып қояды немесе жария сауда-саттықта сатылады.
Тарих және мәдениет ескерткіштері, мәдени құндылықтар сатып алынған кезде меншiк иесiне - тараптардың келiсуiмен, ал дау туған ретте сот белгiлеген мөлшерде олардың құны өтеледi. Жария саудаға салып сатқан кезде меншiк иесiне сатудан түскен сома сауданы өткiзу шығындары шегерiлiп берiледi.
Ескерту. 256-бапқа өзгеріс енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
257-бап. Меншiк құқығы тоқтатылған кезде мүлiктi бағалау
Меншiк құқығы тоқтатылған кезде, егер Қазақстан Республикасының заңдарында өзгеше белгiленбесе, мүлiк оның нарықтық құны негiзге алына отырып бағаланады.
Ескерту. 257-бапқа өзгерту енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
258-бап. Меншiк иесi емес адамның заттық құқығының тоқтатылуы
Меншiк иесi емес адамның заттық құқықтары осы Кодекстiң 249-257- баптарында белгiленген ережелер бойынша, сондай-ақ заң құжаттарында, заңды тұлғаның жарғысында немесе меншiк иесiнiң мүлiк иесiмен жасасқан шартында белгiленген тәртiп бойынша меншiк иесiнiң шешiмiмен тоқтатылады.
15-тарау. Меншік құқығы мен өзге де заттық құқықтарды қорғау
259-бап. Меншiк құқығын тану
Меншiк иесi меншiк құқығын тануды талап етуге құқылы.
260-бап. Меншiк иесiнiң мүлiктi өзгенiң заңсыз иеленуiнен талап етуi
Меншiк иесi өзгенiң заңсыз иеленген өз мүлкiн талап етуге құқылы.
261-бап. Адал алушыдан мүлiктi талап етiп алдыру
1. Егер мүлiк оны иелiктен айыруға құқығы болмаған адамнан өтеулі түрде алынып, алушы мұны бiлмесе және бiлуге тиiс болмаса (адал алушы), мүлiктi меншiк иесi немесе меншiк иесi мүлiктi иеленуге берген адам жоғалтқан, не мұның екеуiнен де ұрланған, не олардың иеленуiнен бұлардың еркiнен тыс өзге жолмен шығып қалған ретте ғана меншiк иесi бұл мүлiктi алушыдан талап етiп алдыруға құқылы.
2. Егер мүлiк оны иелiктен айыруға құқығы жоқ адамнан өтеусіз түрде алынса, меншiк иесi барлық ретте мүлiктi талап етiп алдыруға құқылы.
3. Егер мүлiк сот шешiмдерiн атқару үшiн белгiленген тәртiп бойынша сатылған болса, осы баптың 1-тармағында көрсетiлген негiздер бойынша мүлiктi талап етiп алдыруға жол берiлмейдi.
Ескерту. 261-бапқа өзгерістер енгізілді - ҚР 1998.03.02. № 211; 17.07.2015 № 333-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
262-бап. Ақша мен бағалы қағаздарды талап етiп алдыруды шектеу
Ұсынушыға берiлетiн ақшаны, сондай-ақ бағалы қағаздарды адал иеленушiден талап етiп алдыруға болмайды.
263-бап. Заттарды заңсыз иеленуден қайтарып алу кезiнде есеп айырысу
1. Меншiк иесi осы Кодекстiң 260, 261-баптары негiзiнде мүлiктi талап ете отырып, арам ниеттi иеленушiден бүкiл иеленген кезiнде өзi алған немесе алуға тиiс болған табыстардың бәрiн қайтаруды немесе өтеудi; адал иеленушiден иеленуiнiң заңсыздығы туралы бiлген немесе бiлуге тиiс болған немесе меншiк иесiнiң мүлiктi қайтару туралы талап қою жөнiндегi хабарламасын алған кезден бастап өзi алған немесе алуға тиiс болған табыстардың бәрiн талап етуге де құқылы. Адал иеленушi өз кезегiнде меншiк иесiнен мүлiктен табыс есептелетiн уақыттан бастап ол мүлiкке жұмсаған қажеттi шығындарды меншiк иесiнiң өтеуiн талап етуге құқылы. Арам ниеттi иеленушi мұндай өтемдi иеленушiнiң талабын сот негiздi деп тапқан реттерде толық немесе iшiнара алуға құқылы.
2. Заңсыз иеленушi өзi жасаған жақсартуларды, егер олар затқа зақым келтiрмей бөлуге келсе, өзiнде қалдыруға құқылы. Егер жақсартуларды бұлайша бөлу мүмкiн болмаса, адал иеленушiнiң жақсартуға жұмсаған шығындарын өтетудi талап етуге құқығы бар, бiрақ ол зат құнының ұлғайтылған мөлшерiнен аспауы керек. Арам ниеттi иеленушiнiң мұндай құқығы жоқ.
264-бап. Меншiк иесi құқықтарын иеленуден айыруға байланысы жоқ бұзылудан қорғау
Меншiк иесi, өз құқықтарының бұзылуы иелiктен айыруға байланысты болмағанымен, оларды бұзудың қандайын болса да жоюды талап етуге құқылы.
265-бап. Меншiк иесi емес адамның заттық құқықтарын қорғау
Меншiк иесi болмағанымен, шаруашылық жүргiзу, оралымды басқару, тұрақты жер пайдалану құқығымен не заң құжаттарында немесе шартта көзделген өзге де негiзбен мүлiктi иеленушiнiң де осы Кодекстiң 259-264- баптарында көзделген құқықтары болады. Бұл адамның өз иелiгiн меншiк иесiнен де қорғауға құқығы бар.
266-бап. Заңда көзделген негiздер бойынша меншiк иесiнiң құқықтары тоқтатылған кезде оның мүдделерiн қорғау
Қазақстан Республикасы меншiк құқығын тоқтататын заң құжаттарын қабылдаған ретте, осы құжаттарды қабылдау нәтижесiнде меншiк иесiне келтiрiлген залалдарды меншiк иесiне Қазақстан Республикасы толық көлемiнде өтейдi.
267-бап. Меншiк иесiнiң құқықтарын және басқа заттық құқықтарды бұзатын мемлекеттік органдар мен лауазымды адамдар құжаттарының жарамсыздығы
Ескерту. 267-баптың тақырыбына өзгеріс енгізілді - ҚР 2011.03.01 N 414-IV Заңымен (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі).
1. Егер мемлекеттік органның не лауазымды адамның заңдарға сәйкес келмейтiн қалыпты немесе жеке құжат шығаруы салдарынан меншiк иесiнiң және басқа адамдардың өзiне тиесiлi мүлiктi иелену, пайдалану және оған билiк ету жөнiндегi құқықтары бұзылса, мұндай құжат меншiк иесiнiң немесе құқығы бұзылған адамның талап қоюы бойынша сот тәртiбiмен жарамсыз деп танылады.
2. Нақты iс бойынша сот шешiм шығарған жағдайда мемлекеттік органдардың заң құжаттарына қайшы келетiн құжаттары қолданылмайды.
Көрсетілген актілерді басып шығару салдарынан меншiк иесiне келтiрiлген залалдар осы Кодекстің 922-бабы 1-тармағының қағидаларына сәйкес тиiстi мемлекеттік органның тиiстi бюджет қаражатынан толық көлемде өтеуіне жатады.
Ескерту. 267-бапқа өзгерістер енгізілді - ҚР 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 17.07.2015 № 333-V ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
3 бөлiм. Міндеттемелік құқық 1-бөлiмше. Міндеттеме туралы жалпы ережелер 16-тарау. Міндеттемелер ұғымы және олардың пайда болу негіздері
268-бап. Мiндеттеме
Мiндеттемеге сәйкес бiр адам (борышкер) басқа адамның (кредитордың) пайдасына мүлiк беру, жұмыс орындау, ақша төлеу және тағы да сол сияқты белгiлi бiр әрекеттер жасауға не белгiлi бiр әрекет жасаудан тартынуға мiндеттi, ал кредитордың борышкерден өз мiндеттерiн орындауын талап етуге құқығы бар. Кредитор борышкерден атқарылғанды қабылдауға мiндеттi.
Егер осы Кодекстің Ерекше бөлімінде өзгеше көзделмесе, міндеттемелерге осы кіші бөлімнің ережелері қолданылады.
Ескерту. 268-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
269-бап. Мiндеттеме тараптары
1. Алынып тасталды - ҚР 1998.03.02 N 211 Заңымен. 2. Мiндеттемеде оның әр тарабы - несие берушi немесе борышқор ретiнде бiр
мезгiлде бiрнеше адам қатыса алады. Мұндай реттерде осы Кодексте белгiленген ережелерге сәйкес үлестi, ынтымақты немесе жәрдем берушiлiк мiндеттеме пайда болады (осы Кодекстiң -286 288-баптары).
Борышқор жағынан мiндеттемеге қатысушы адамдардың бiрiне несие берушi қойған талаптардың жарамсыз болуы, сол сияқты мұндай адамға қойылатын талап бойынша талап қою мерзiмiнiң өтiп кетуi несие берушiнiң өзге де осындай адамдарға қоятын талаптарына өздiгiнен әсер етпейдi.
3. Егер мiндеттемеге сәйкес тараптардың әрқайсысы басқа тараптың пайдасына мiндет алса, бұл оның пайдасына жасауға мiндеттi басқа тараптың борышқоры және сонымен бiрге оған талап қоюға құқығы бар оның несие берушiсi болып есептеледi.
Ескерту. 269-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
270-бап. Мiндеттемеге қатысушылар
1. Тараптар (борышқор мен несие берушi) және үшiншi жақ мiндеттемеге қатысушылар болып табылады.
2. Үшiншi жақ ретiнде мiндеттеме тараптарының бiреуiне мiндеттемелер немесе өзге де құқық қатынастары арқылы байланысты жақтар қатысады.
3. Мiндеттеме үшiншi жақ үшiн мiндеттер туғызбайды. Заңдарда немесе тараптардың келiсiмiнде көзделген реттерде мiндеттеме үшiншi жақтар үшiн мiндеттеменiң бiр немесе екi тарапына да қатысты құқықтар туғызуы мүмкiн.
271-бап. Мiндеттеменiң пайда болу негiздерi
Мiндеттемелер осы Кодекстiң 7-бабында көрсетiлген шарттан, зиян келтiруден немесе өзге де негiздерден пайда болады.
17-тарау. Міндеттемені орындау
272-бап. Мiндеттеменi тиiсiнше орындау
Мiндеттеме - мiндеттеме шарттары мен заң талаптарына сәйкес тиiсiнше орындалуға тиiс, ал мұндай шарттар мен талаптар болмаған жағдайда - iскерлiк қызмет өрiсiндегi әдеттегi құқықтарға немесе әдетте қойылатын өзге де талаптарға сәйкес орындалуға тиiс.
273-бап. Мiндеттеменi орындаудан бiржақты бас тартуға жол берiлмеуi
Заңдарда немесе шартта көзделгеннен басқа реттерде мiндеттеменi орындаудан бiржақты бас тартуға және оның шарттарын бiржақты өзгертуге жол берiлмейдi.
274-бап. Мiндеттеменi бөлшектеп орындау
Егер мiндеттеме шарттарында, заңдарда өзгеше белгiленбесе немесе iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан немесе мiндеттеме мәнiнен өзгеше туындамаса, несие берушi мiндеттеменi бөлшектеп орындауды қабылдамауға құқылы.
275-бап. Мiндеттеменi тиiстi адамның орындауы
Егер тараптардың келiсiмiнде өзгеше көзделмесе және iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан немесе мiндеттеме мәнiнен өзгеше туындамаса, борышқор мiндеттеменi орындау кезiнде несие берушiнiң өзi немесе бұған ол уәкiлдiк берген адам орындауға қабылдайтын нәрсенi талап етуге құқылы және мұндай талап жасалмауының зардабын тартуға тәуекел етедi.
276-бап. Мiндеттеменi үшiншi жақтың орындауы
1. Егер заңдарда немесе шартта көзделсе, сол сияқты үшiншi жақ тиiстi шарт арқылы тараптардың бiрiмен байланысты болса, мiндеттеменi орындау түгелдей немесе бөлшектеп үшiншi жаққа жүктелуi мүмкiн.
2. Егер заңдардан, мiндеттеме шарттарынан немесе оның мәнiнен борышқордың мiндеттеменi жеке өзi орындау мiндетi туындамаса, несие берушi борышқор үшiн үшiншi жақ ұсынған орындау iсiн қабылдауға мiндеттi.
3. Несие берушiнiң борышқор мүлкiнен ақы өндiрiп алуы салдарынан өзiнiң бұл мүлiкке құқығынан (иелену, пайдалану, кепiлге салу құқығы және басқа құқықтары) айрылу қаупi төнген үшiншi жақ несие берушiнiң талабын борышқордың келiсiмiнсiз өз есебiнен қанағаттандыра алады. Бұл ретте
мiндеттеме бойынша несие берушiнiң құқығы үшiншi жаққа көшедi және осы Кодекстiң талапқа көну туралы ережелерi (осы Кодекстiң -339 347-баптары) қолданылады.
277-бап. Мiндеттеменi орындау мерзiмi
1. Егер мiндеттемеде ол орындалатын күн немесе ол орындалуға тиiстi уақыт кезеңi көзделсе немесе анықтауға мүмкiндiк берсе, мiндеттеме сол күнi немесе тиiсiнше сол кезең iшiнде кез келген уақытта орындалуға тиiс.
2. Мiндеттемеде ол орындалатын мерзiм көзделмесе және бұл мерзiмдi анықтауға мүмкiндiк беретiн шарттар болмаса, ол мiндеттеме пайда болғаннан кейiн ақылға қонымды мерзiмде орындалуға тиiс.
Ақылға қонымды мерзiмде орындалмаған, сол сияқты орындалу мерзiмi талап етiлетiн кезбен белгiленген мiндеттеменi, егер заңдардан, мiндеттеме шарттарынан, iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан немесе мiндеттеме мәнiнен басқа мерзiмде орындау мiндетi туындамаса, борышқор несие берушi оның орындалуын талап еткен күннен бастап жетi күн мерзiмде орындауға мiндеттi.
278-бап. Мiндеттеменi бiрқалыпты орындау жөнiндегi талаптар
Ұзақ мерзiмде орындалатын болып есептелген мiндеттемелер, егер заңдарда немесе мiндеттеме шарттарында өзгеше көзделмесе, не мiндеттеме мәнiнен немесе iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан туындамаса, бiрқалыпты, мiндеттеменiң осы түрi үшiн ақылға қонымды кезеңдерде (күн, онкүндiк, ай, тоқсан және т.б.) орындалуға тиiс.
279-бап. Мiндеттеменi мерзiмiнен бұрын орындау
1. Егер заңдарда немесе мiндеттеме шарттарында өзгеше көзделмесе және оның мәнiнен туындамаса, борышқор мiндеттеменi мерзiмiне дейiн орындауға құқылы.
2. Кәсiпкерлiк қызметке байланысты мiндеттемелердi мерзiмiнен бұрын орындауға мiндеттеменi мерзiмiне дейiн орындау мүмкiндiгi заңдарда немесе мiндеттеме шарттарында көзделген, не iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан немесе мiндеттеменiң мәнiн туындаған реттерде ғана жол берiледi.
280-бап. Мiндеттеменiң орындалу барысы туралы ақпарат
Заңдарда немесе мiндеттеме шарттарында борышқордың несие берушiге мiндеттеменiң орындалу барысы туралы хабарлап отыру мiндетi көзделуi мүмкiн .
281-бап. Мiндеттеме орындалатын жер
Егер мiндеттеме орындалатын жер заңдарда немесе оның шарттарында белгiленбесе немесе мiндеттеме мәнiнен немесе iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан көрiнбесе, ол:
1) мiндеттеме бойынша қозғалмайтын мүлiктi беру - мүлiк орналасқан жерде; 2) мiндеттеме бойынша тауарды немесе өзге де мүлiктi тасымалдауды
пайдалана отырып беру - мүлiктi несие берушiге жеткiзу үшiн оны бiрiншi тасымалдаушыға тапсыратын жерде;
3) егер бұл жер мiндеттеме пайда болған кезде несие берушiге белгiлi болса, кәсiпкердiң басқа мiндеттемелерi бойынша тауар немесе өзге де мүлiктi беру - мүлiк дайындалған немесе сақталатын жерде;
4) ақшалай мiндеттеме бойынша - несие берушiнiң мiндеттеме пайда болған кездегi тұрғылықты жерiнде, ал егер несие берушi заңды тұлға болса - мiндеттеме пайда болған кезде оның болған жерiнде; егер несие берушi мiндеттеменiң орындалу кезiнде тұрғылықты жерiн немесе тұрған жерiн өзгертiп , бұл туралы борышқорға хабарласа - орындалатын жердiң өзгертiлуiне байланысты барлық шығындарды соның есебiне жатқыза отырып, оның жаңа тұрғылықты жерiнде немесе тұрған жерiнде;
5) басқа да барлық мiндеттемелер бойынша - борышқордың тұрғылықты жерiнде, ал егер борышқор заңды тұлға болса - оның орналасқан жерiнде орындалуға тиiс.
Ескерту. 281-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
282-бап. Ақшалай мiндеттеме
1. Ақшалай мiндеттемеге байланысты бiр адам (борышкер) екiншi адамға ( кредиторға) ақша төлеуге мiндеттi, ал кредитордың борышкерден ақша төлеу жөнiндегi мiндеттерiн (ақша қарызы және басқа да мiндеттемелер) орындауын талап етуге құқығы бар. Өтеу туралы шарт, залалды өтеу және тұрақсыздық айыппұлын төлеу туралы мiндеттемелер, сондай-ақ зиян келтiру не негiзсiз баю салдарынан туындаған мiндеттемелер бойынша ақша төлеу жөнiндегi мiндеттерге, егер осы Кодексте, Қазақстан Республикасының заңнамалық актiлерiнде өзгеше белгiленбесе немесе мiндеттеме мәнiнен туындамаса, ақшалай мiндеттемелер туралы ереже қолданылады.
Қазақстан Республикасының заңнамалық актiлерiнде көзделген жағдайларды қоспағанда, Қазақстан Республикасының аумағында ақшалай мiндеттемелер теңгемен (осы Кодекстiң 127-бабы) көрсетiледi.
Қазақстан Республикасының аумағында мiндеттемелер бойынша есеп айырысуды жүзеге асыру кезiнде шетел валютасын, сондай-ақ шетел валютасындағы төлем құжаттарын пайдалануға Қазақстан Республикасының заңнамалық актiлерiнде айқындалған жағдайларда және шарттарда немесе оларда белгiленген тәртiппен жол берiледi.
Төлемдер мен аударымдарды жүзеге асыру тәртiбi мен тәсiлдерi Қазақстан Республикасының төлемдер және төлем жүйелері туралы заңнамасында белгiленедi және оларды тараптар тиiстi шартта айқындайды.
2. Ақшалай мiндеттеменi орындау үшiн жеткiлiксiз төленген төлемнiң сомасы тараптардың өзге келісімi болмаған жағдайда, ең алдымен негізгі борыш және сыйақы (мүдде) бойынша берешекті, ағымдағы кезеңдегі негізгі борышты және сыйақыны (мүддені), ал қалған бөлігінде – кредитордың орындауды алу бойынша тұрақсыздық айыбы мен шығасыларын өтейдi.
Банктік қарыз шарттары немесе микрокредит беру туралы шарттар бойынша төлемдерді өтеу ерекшеліктері Қазақстан Республикасының банк заңнамасында не Қазақстан Республикасының микроқаржы ұйымдары туралы заңнамасында белгіленеді.
3. Егер Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, ұзақ мерзiмдi мiндеттемелерде тараптар келіскен шарттарда төлемдi индекстеу көзделуi мүмкiн.
Ескерту. 282-бапқа өзгерту енгізілді - ҚР 1997.07.11 N 154, 1999.07.16 N 436, 2001.12.24 N 276(2002.01.01 бастап қолданысқа енгізіледі), 2003.07.10 N 483( 2004.01.01 бастап қолданысқа енгізіледі), 2007.01.12 N 225, 2011.02.10 N 406-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.11.2015 № 422-V (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 26.07.2016 № 12-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік отыз күн өткен соң қолданысқа енгізіледі) Заңдарымен.
283-бап. Азаматты асырап-бағуға төленетiн сомаларды ұлғайту
Азаматты тiкелей асырап-бағуға ақшалай мiндеттеме бойынша төленетiн сома (өмiрiне немесе денсаулығына келтiрiлген зиянды өмiр бойы асырап-бағу шарты бойынша өтеу және басқалары) инфляцияның болжамды деңгейінің орташа мәніне пропорционалды түрде жыл сайын ұлғайтылады.
Ескерту. 283-бап жаңа редакцияда - ҚР 27.04.2015 № 311-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
284-бап. Өзара мiндеттердiң орындалуы
1. Егер Қазақстан Республикасының заңнамасынан, шарттан, iскерлiк айналым ғұрыптарынан, мiндеттеме шарттарынан немесе оның мәнiнен өзгеше туындамайтын болса, тараптар өзара мiндеттердi бiр мезгiлде орындауға тиiс.
2. Тараптардың бiрi мiндеттеменi орындамаған немесе тиiсiнше орындамаған жағдайда, екінші тарап өз мiндеттемесiн орындауды тоқтата тұруға не осы мiндеттемесiн орындаудан бас тартуға және залалды өтеуін талап етуге құқылы.
Ескерту. 284-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
285-бап. Балама мiндеттеменiң орындалуы
Екi немесе бiрнеше әрекеттiң бiрiн жасауға мiндеттi борышқорға, егер заңдардан немесе мiндеттеменiң шарттарынан өзгеше туындамаса, таңдау құқығы берiледi.
286-бап. Бiрнеше несие берушi немесе бiрнеше борышқор қатысатын мiндеттеменiң орындалуы
Егер мiндеттемеге бiрнеше несие берушi немесе бiрнеше борышқор қатысса ( адамдар көп болған мiндеттеме), несие берушiлердiң әрқайсысы мiндеттеменi орындауды талап етуге құқылы, ал борышқорлардың әрқайсысы заңдардан немесе мiндеттеме шарттарынан өзгеше туындамайтындықтан, басқалармен тең үлестi орындауға мiндеттi (үлестi мiндеттеме).
287-бап. Ортақтасқан мiндеттеменiң орындалуы
1. Несие берушiлердiң әрқайсысы мiндеттеменi толық атқаруды талап етуге құқылы, ал борышқорлардың әрқайсысы орындауға мiндеттi болуына сәйкес көп жақтар қатысатын мiндеттеме ортақтасқан мiндеттеме деп танылады.
Егер бұл шартта көзделмесе немесе заң құжаттарында белгiленбесе, соның iшiнде мiндеттеменiң мәнi бөлiнбейтiн кезде ортақтасқан мiндеттеме немесе ортақтасқан талап пайда болады.
2. Кәсiпкерлiк қызметпен байланысты мiндеттеме бойынша бiрнеше борышқордың мiндеттерi, сол сияқты мұндай мiндеттемелердегi бiрнеше несие
берушiнiң талаптары, егер заңдарда немесе мiндеттеме шарттарында өзгеше көзделмесе, ортақтасқан мiндет болып табылады.
3. Борышқорлар ортақтасып мiндеттi болған жағдайда несие берушi барлық борышқорлардан да, жеке-жеке алғанда олардың кез келгенiн де, оның үстiне борышты түгелдей де, бөлшектеп те орындауды талап етуге құқылы. Ортақтас борышқорлардың бiрiнен толық қанағаттанбаған несие берушi алынбағанды ортақтас борышқорлардың қалғандарынан талап етуге құқылы.
Ортақтас борышқорлар мiндеттеме толық орындалғанға дейiн мiндеттi болып қала бередi.
Борышқорлардың бiрiншi ортақтастық мiндеттi толық орындауы қалған борышқорларды несие берушi үшiн орындаудан босатады.
4. Талаптар ортақ болған жағдайда ортақтас несие берушiлердiң кез-келгенi борышқорға толық көлемiнде талап қоюға құқылы.
Ортақтас несие берушiлердiң бiреуiне мiндеттеменi толық орындау борышқорды өзге несие берушiлерге оны орындаудан босатады.
5. Ортақтасқан мiндет болған ретте борышқордың несие берушiнiң талаптарына қарсы басқа борышқорлардың осы борышқор қатыспайтын несие берушiге осындай қатынастарына негiзделген қарсылық бiлдiруге құқығы жоқ.
Талаптар ортақ болған жағдайда борышқордың ортақтас несие берушiлердiң бiреуiнiң талабына қарсы осы несие берушi қатыспайтын борышқордың басқа ортақтас несие берушiмен осындай қатынастарына негiзделген қарсылық бiлдiруiне құқығы жоқ.
288-бап. Субсидиялық мiндеттеменi орындау
Негiзгi борышқор несие берушiнiң мiндеттеменi орындау туралы талабын қанағаттандырмаған жағдайда бұл талап орындалмаған бөлiгiнде басқа борышқорға (субсидиялық борышқорға) мәлiмдеуi мүмкiн екендiгi заң құжаттарында немесе несие берушi мен борышқордың арасындағы мiндеттеме ережелерiнде көзделуi мүмкiн.
289-бап. Регрестiк талаптар
1. Басқа адамның мiндеттемесiн орындаған борышқор орындалған мiндеттеме мөлшерiнде сол адамға керi талап (регресс) қоюға құқылы.
Үшiншi адамның әрекеттерi салдарынан мiндеттеменi орындамаған борышқор осы адамнан залалдарын талап етуге құқылы.
2. Ортақтасқан мiндеттеменi орындаған борышқор қалған борышқорлардың әрқайсысына оның өзiне тиесiлi үлесiн шегерiп, тең үлеспен керi талап қоюға құқылы.
Борышқорлардың бiреуi ортақтасқан мiндеттi орындаған борышқорға төлемегенi осы борышқорға және қалған борышқорларға тең үлесте түседi.
Осы тармақтың ережелерi борышқорлардың бiреуiнiң қарсы талабы есептеле отырып, тиiсiнше ортақтасқан мiндеттемелердi тоқтату кезiнде қолданылады.
3. Борышқордың орындағанын қабылдаған ортақтас несие берушi басқа несие берушiлерге, егер олардың арасындағы қатынастардан өзгеше туындамаса, оларға тиесiлi үлестерiн өтеуге мiндеттi.
290-бап. Мiндеттеменiң орындалғанын куәландыру
1. Мiндеттеменiң орындалғанын қабылдай отырып, несие берушi борышқордың талап етуi бойынша оның толық немесе бiр бөлiгi орындалғаны жөнiнде оған қолхат беруге мiндеттi.
Егер борышқор мiндеттеменi куәландыру үшiн несие берушiге борыш құжатын берсе, несие берушi оның орындалғанын қабылдай отырып, құжатты борышқорға қайтаруға тиiс. Қайтарып беру мүмкiн болмаған жағдайда ол мұны өзi беретiн қолхатта көрсетуге мiндеттi.
Қолхат борышқорға қайтарылған борыш құжатындағы жазумен алмастырылуы мүмкiн.
2. Борышқорда борыш құжатының болуы, өзгеше дәлелденгенге дейiн мiндеттеменiң тоқтатылғанын куәландырады.
3. Несие берушi мiндеттеменiң орындалғаны туралы қолхат беруден, борыш құжатын қайтарудан немесе оны қайтарудың мүмкiн еместiгiн қолхатта атап көрсетуден бас тартқан жағдайда борышқор оны орындауды кiдiрте тұруға құқылы. Бұл ретте несие берушi мерзiмiн өткiзiп алушы деп есептеледi. 291-бап. Борышты төлеу арқылы міндеттемені орындау
Ескерту. 291-баптың тақырыбы жаңа редакцияда – ҚР 02.07.2018 № 166-VІ ( 01.07.2019 бастап қолданысқа енгізіледі) Заңымен.
1. Егер борышқор: 1) несие берушiнiң немесе орындалған iстi қабылдауға өзi уәкiлдiк берген
адамның мiндеттеме орындалуға тиiстi жерде болмауы; 2) несие берушiнiң әрекет қабiлетсiздiгi және оның өкiлiнiң болмауы; 3) мiндеттеме бойынша, атап айтқанда, бұл мәселе жөнiнде несие берушi мен
басқа адамдар арасындағы дауға байланысты несие берушiнiң кiм екенi жайында анық айқындық болмауы;
4) несие берушiнiң орындалған iстi қабылдаудан жалтаруы немесе оның тарапынан өзге мерзiмiн өткiзiп алушылық салдарынан борышқор мiндеттеменi орындай алмаса, борышқор мiндеттемелерiн орындау үшiн өзiнен алынатын ақшаны депозит шарттарында, ал бағалы қағаздарды - нотариустың атына сақтау
шарттарында, ал заң құжаттарымен белгiленген жағдайларда соттың атына орналастыруға құқылы.
Егер борышкер мен кредитор арасындағы нотариат куәландырған шартта міндеттемені орындау тәсілі ретінде нотариус депозитіне ақша орналастыру көзделген болса, борышкер міндеттемелерін орындау үшін өзінен алынатын ақшаны депозит шарттарында нотариустың атына орналастыруға да құқылы.
2. Ақша сомасын немесе бағалы қағаздарды депозит шарттарында салу немесе нотариустың немесе соттың атына сақтау мiндеттеменiң орындалғаны болып есептеледi.
Ақша немесе бағалы қағаздар атына салынған нотариус немесе сот бұл туралы несие берушiлерге хабарлайды.
Борышкердің ақшаны және бағалы қағаздарды нотариустың атына орналастыру, оларды кредиторға беру шарттары, сондай-ақ депозит пен сақтаудың басқа да шарттары Қазақстан Республикасының нотариат туралы заңнамасында белгіленеді.
3. Осы баптың 1-тармағында көрсетілген негіздердің салдарынан орындалуы мүмкін емес бағалы қағаздар нарығындағы жекелеген міндеттемелерді орындау ерекшеліктері Қазақстан Республикасының заңдарында белгіленеді.
Ескерту. 291-бапқа өзгерістер енгізілді – ҚР 1997.07.11. N 154, 1998.03.02. N 211; 21.01.2019 № 217-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (01.07.2019 бастап қолданысқа енгізіледі) Заңдарымен.
18-тарау. Міндеттеменің орындалуын қамтамасыз ету Параграф 1. Жалпы ережелер
292-бап. Мiндеттеменiң орындалуын қамтамасыз ету әдiстерi
1. Мiндеттеменi орындау, заңдарда немесе шартта көзделген айып төлету, кепiл, борышқордың мүлкiн алып қалу, аманат, кепiлдiк, кепiлпұл, кепілдік жарна және басқа да әдiстер арқылы қамтамасыз етiлуi мүмкiн.
Бағалы қағаздар бойынша мiндеттемелердiң орындалуын қамтамасыз ету тәсiлдерi Қазақстан Республикасының бағалы қағаздар рыногындағы қызметтi реттейтiн заң актiлерiнде белгiленедi.
2. Мiндеттеменi қамтамасыз ету туралы келiсiмнiң жарамсыздығы бұл мiндеттеменiң (негiзгi мiндеттеменiң) жарамсыздығына әкелiп соқтырмайды.
3. Негiзгi мiндеттеменiң жарамсыздығы оны қамтамасыз ететiн мiндеттеменi жарамсыз етедi.
4. Егер Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, негізгі міндеттеменің тоқтатылуы оны қамтамасыз ететін міндеттеменің тоқтатылуына алып келеді.
Ескерту. 292-бапқа өзгеріс енгізілді - ҚР 2005.07.08 N 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі) Заңдарымен.
Параграф 2. Айып төлеу
293-бап. Айып төлеу ұғымы
Борышқор мiндеттемесiн орындамаған немесе тиiсiнше орындамаған ретте, атап айтқанда, орындау мерзiмiн өткiзiп алған ретте несие берушiге төлеуге мiндеттi, заңдармен немесе шартпен белгiленген ақша сомасы айып төлеу ( айыппұл, өсiм) деп танылады. Айып төлеу туралы талап бойынша несие берушi оған келтiрiлген залалдарды дәлелдеуге мiндеттi емес.
Ескерту. 293-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
294-бап. Айып төлеу туралы келiсiмнiң нысаны
Айып төлеу туралы келiсiм, негiзгi мiндеттеменiң нысанына қарамастан, жазбаша түрде жасалуға тиiс.
Жазбаша нысанды сақтамау тұрақсыздық айыбы туралы келiсiмнiң маңызсыздығына алып келеді.
Ескерту. 294-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
295-бап. Заңды айып төлеу
1. Несие берушi тараптардың келiсiмiнде айып төлеу мiндетi көзделген-көзделмегенiне қарамастан, заңдарда белгiленген айып төлеудi (заңды айып төлеудi) талап етуге құқылы.
2. Егер заңдарда тыйым салынбаса, тараптардың келiсiмiмен заңды айып төлеу мөлшерi көбейтiлуi мүмкiн.
296-бап. Айып төлеу мөлшерi
Айып төлеу мөлшерi нақты ақша сомасында немесе орындалмаған не тиiсiнше орындалмаған мiндеттеме сомасына шаққандағы процентпен белгiленедi. 297-бап. Тұрақсыздық айыбының мөлшерiн азайту
Егер төленуге тиiстi тұрақсыздық айыбы (айыппұл, өсiмпұл) кредитордың шеккен залалдарымен салыстырғанда тым көп болса, сот борышкердің талабы бойынша борышкердің мiндеттеменi орындау дәрежесiн және борышкер мен кредитордың назар аударуға лайықты мүдделерiн ескере отырып, тұрақсыздық айыбын (айыппұлды, өсiмпұлды) азайтуға құқылы.
Ескерту. 297-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
298-бап. Айып төлеудi өндiрiп алу негiздерi
Мiндеттеменi бұзғаны үшiн борышқор жауапқа тартылатын жағдай болған кезде мiндеттеменiң орындалмағаны немесе тиiсiнше орындалмағаны үшiн айып өндiрiп алынады (осы Кодекстiң 359-бабы).
Параграф 3. Кепіл
299-бап. Кепiл ұғымы
1. Мiндеттемеге сәйкес несие берушiнiң (кепiл ұстаушының) борышқор кепiлмен қамтамасыз етiлген мiндеттеменi орындамаған ретте кепiлге салынған мүлiк құнынан осы Кодексте белгiленген алып тасталатындарды қоспай, осы мүлiк тиесiлi адамның (кепiл берушiнiң) басқа несие берушiлердiң алдында артықшылықпен қанағаттандырылуға құқығы бар мiндеттеменi атқаруының осындай әдiсi кепiл деп танылады.
Кепiл ұстаушының кепiлге салынған мүлiк, кiмнiң пайдасына сақтандырылғанына қарамастан, оның жоғалғаны немесе бүлiнгенi үшiн, егер жоғалу немесе бүлiну кепiл ұстаушы жауап беретiн себептер бойынша болмаса, сақтандыру өтемiнен сол бұрынғы негiзде қанағаттандырылуға құқығы бар.
2. Кәсiпорындар, үйлер, ғимараттар, пәтерлер, жер учаскелерiне және басқа қозғалмайтын мүлiкке құқықтар (ипотека) кепiлi қозғалмайтын мүлiк ипотекасы туралы Қазақстан Республикасы Заңымен реттеледi. Ипотека туралы Қазақстан Республикасының Заңында өзгеше ережелер белгiленбеген реттерде ипотекаға осы Кодекстегi кепiл туралы жалпы ережелер қолданылады.
3. Мемлекеттік тіркеуге жататын әуе және теңіз кемелерінің, ішкі суда жүзетін кемелердің, "өзен-теңізде" жүзетін кемелердің кепілі (кемелер ипотекасы
) Қазақстан Республикасының арнайы заң актілерімен реттеледі. Осы Кодекстегі кепіл туралы жалпы ережелер Қазақстан Республикасының арнайы заң актілерінде өзге ережелер көзделмеген жағдайда кемелер ипотекасына қолданылады.
Осы тармақтың бірінші бөлігіндегі талаптар жасалып жатқан теңіз кемелеріне , ішкі суда жүзетін кемелерге, "өзен-теңізде" жүзетін кемелерге де қолданылады.
Ескерту. 299-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211, 2002.01.17. N 285 Заңдарымен.
300-бап. Кепiлдiң пайда болу негiздерi
1. Кепiл шартқа сәйкес пайда болады. Кепiл заң құжаттарының негiзiнде, егер заң құжаттарында қандай мүлiк және қандай мiндеттеменiң орындалуын қамтамасыз ету үшiн кепiлде жатқан деп танылатыны көзделсе, оларды көрсетiлген мiндеттемелердiң пайда болуы кезiнде де туындайды.
2. Осы Кодекстiң шартқа сәйкес пайда болатын кепiл туралы ережелерi, егер заң құжаттарында өзгеше көзделмесе, тиiсiнше заң құжаттары негiзiнде пайда болған кепiлге сәйкес қолданылады.
301-бап. Кепiл мәнi
1. Кез келген мүлiк, оның ішінде айналымнан алынған заттарды (осы Кодекстiң 116-бабының 2-тармағы), кредитордың жеке басымен тығыз байланысты талаптарды, атап айтқанда алименттер, өмiрiне немесе денсаулығына келтiрiлген зиянды өтеу туралы талаптарды және оларды басқа тұлғаға беруге заңнамалық актілермен тыйым салынған өзге де құқықтарды қоспағанда, заттар және мүлiктiк құқықтар (талаптар) кепiл мәні болуы мүмкін.
2. Кепiл құқығы келешекте кепiлге берушінің меншiгiне немесе шаруашылық жүргізуіне түсетiн мүлiкке шарт бойынша қолданылуы мүмкiн.
3. Өндіріп алуға жол берілмейтін мүліктің жекелеген түрлерін, атап айтқанда, азаматтардың мүлкін кепілге қоюға заңнамалық актілермен тыйым салынуы немесе ол шектелуі мүмкін.
4. Алып тасталды - ҚР 2007.01.12 N 225 Заңымен. 5. Алып тасталды - ҚР 2005.07.08 N 72 (қолданысқа енгізілу тәртібін 2-баптан
қараңыз) Заңымен. Ескерту. 301-бапқа өзгеріс енгізілді - ҚР 1997.07.11 N 154, 1998.03.02 N 211,
2005.07.08 N 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12 N 225, 2012.04.27 N 15-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он
күн өткен соң қолданысқа енгізіледі) Заңдарымен.
302-бап. Кепiл арқылы қамтамасыз етiлетiн талаптар
1. Егер шартта немесе заң құжаттарында өзгеше көзделмесе, кепiл талапты оның нақты қанағаттандырылатын кезiндегi көлемдi сыйақыны (мүдденi) қоса алғанда, орындау мерзiмiн өткiзiп алу арқылы келтiрiлген шығындардың өтелуiн, айып (айыппұл, өсiм) салуды, кепiлге салынған мүлiктi ұстау жөнiндегi қажеттi шығындарды, сондай-ақ өндiрiп алу жөнiндегi шығындарды өтеудi қамтамасыз етедi.
2. Егер тараптар мұндай талаптарды кепiл арқылы қамтамасыз ету мөлшерi туралы уағдаласқан жағдайда кепiл болашақта пайда болатын тараптарға қатысты белгiленуi мүмкiн.
Ескерту. 302-бапқа өзгерту енгізілді - Қазақстан Республикасының 1997.07.11 . N 154 Заңымен.
303-бап. Кепiл түрлерi
1. Ипотека - кепiлге салынған мүлiк кепiл салушының немесе үшiншi бiр жақтың иелiгiнде және пайдалануында қалатын кепiл түрi.
Кәсiпорындар, құрылыстар, үйлер, ғимараттар, көп пәтерлi үйдегi пәтерлер, көлiк құралдары, ғарыш объектiлерi, айналымдағы тауарлар және азаматтық айналымнан алынбаған басқа да мүлiк ипотека мәнi бола алады.
Бөлiнетiн жемiстер бөлген кезден бастап үшiншi жақтың құқықтарының объектiсi болмайтын жағдайда ғана олар ипотека мәнi бола алады. Кәсiпорындар, құрылыстар, үйлер, ғимараттар, көп пәтерлi үйдегi пәтерлер, көлiк құралдары мен ғарыш объектiлерi ипотекасы осындай объектiлердi тiркеудi жүзеге асыратын органдарда тiркелуге тиiс.
2. Кепiлзат - кепiлге салынған мүлiктi кепiл берушi кепiл ұстаушының иелiгiне беретiн кепiл түрi.
Кепiл ұстаушының келiсiмiмен кепiл нысанасы кепiл ұстаушының құлпы салынып, кепiл берушіде қалдырылуы мүмкiн. Кепiл нысанасы кепiл туралы куәландырылатын белгiлер салынып (анық кепiл), кепiл берушiнiң иелiгiнде қалдырылуы мүмкiн.
3. Құқықтарды кепiлге салу кезiнде иелiктен айырылуы мүмкiн мүлiктiк құқықтар, атап айтқанда, кәсiпорындарды, құрылыстарды, үйлердi, ғимараттарды жалға беру құқықтары, шаруашылық серiктестiк мүлкiндегi үлеске құқық, борыштық талап қою, авторлық, өнертапқыштық және өзге де мүлiктiк құқықтар кепiл мәнi болып табылады.
Жер учаскесiне құқықтарды, сондай-ақ өзге табиғи ресурстарға құқықтарды кепiлге беруге, жер және өзге табиғи ресурстық заңдарда белгiленген шектер мен ережелер бойынша жол берiледi.
Мерзiмдi құқық оның әрекет жасау мерзiмi бiткенге дейiн ғана кепiл мәнi бола алады.
Кепiл құқығының борышқоры кепiл туралы хабардар болуға тиiс. Егер кепiлге салынатын құқық құжатпен расталатын болса, кепiл шарты
құқық белгiлеушi құжатты беру арқылы ресiмделуi мүмкiн. 3-1. Банктік салым кепілге қойылған кезде салымшының банктік салым
шарты бойынша құқықтары кепілге ұсынылады. Кепіл беруші - салымшы кепіл ұстаушы туралы мәліметтерді көрсете отырып, банктік салым кепілі туралы банкке жазбаша хабарлауға міндетті.
4. Бағалы қағаздар кепiлi бағалы қағаздар рыногы туралы заңдарға сәйкес жүзеге асырылады.
5. Егер кепiл туралы шартта өзгеше көзделмесе, кепiл нысанасы болып табылатын ақша банкке орналастырылады.
Егер шартта өзгеше көзделмесе, осы ақша үшін алынатын сыйақы (мүдде) кепіл берушіге тиесілі болады.
Ақша кепiл ұстаушыға немесе өзге тұлға кепiл ақшаны пайдалану мүмкiндiгiн шектейтiн шарттарды сақтаған кезде (банк сейфiне, сейфтiң ұяшығына, сақтауға арналған жеке үй-жайда сақтауға беру) осы тұлғаға берiлуi мүмкiн. Осындай тұлғаның кепiл ақшаны пайдалану жөнiндегi шектеулердi орындамауы оның ақша берiлген кезден бастап негiзсiз байығаны үшiн жауаптылығына негiз болып табылады.
Ескерту. 303-бапқа өзгерістер енгізілді - ҚР 1997.07.11 N 154, 2005.07.08 N 72 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12 N 225, 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.05.2018 № 156-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
304-бап. Ортақ меншiктегi мүлiктi кепiлге беру
Ортақ меншiктi құрайтын мүлiк кепiлге барлық меншiк иелерiнiң келiсуiмен ғана берiлуi мүмкiн. Ортақ мүлiктегi үлеске құқық кепiлдiң дербес мәнi бола алады.
305-бап. Кепiл берушi
1. Борышқордың өзi де, үшiншi жақ та кепiл берушi болуы мүмкiн.
2. Егер заң құжаттарында өзгеше көзделмесе, заттың меншiк иесi не меншiк иесiнiң келiсiмiмен оған шаруашылық жүргiзу құқығы бар адам заттың кепiл берушiсi бола алады.
3. Кепiлге салынатын құқыққа ие адам құқықты кепiлге берушi бола алады. Жалға беру құқығын немесе бөтен адамның затына өзге құқықты оны
меншiктенушiнiң немесе оған шаруашылық жүргiзу құқығы бар жақтың келiсiмiнсiз, егер заң құжаттарында немесе шартта аталған жақтардың келiсiмiнсiз бұл құқықты иелiктен айыруға тыйым салынған болса, кепiлге салуға жол берiлмейдi.
306-бап. Кепiлге салынған мүлiктi сақтандыру
1. Кепiл ұстаушыға оның иеленуiне берiлген кепiлге салынған мүлiктi сақтандыру мiндетi шартпен немесе заң құжаттарымен жүктелуi мүмкiн.
Кепiл берушiнiң пайдалануында қалатын кепiлге салынған мүлiктi сақтандыру кепiл берушiге жүктеледi.
2. Сақтандыру жағдайы туған кезде кепiл берушiнiң кепiлге салынған мүлiктi сақтандыру шарты бойынша талап ету құқығы одан кепiл ұстаушы бас тартқан ретте ғана пайда болады.
Егер сақтандыру төлемінің сомасы кепiлмен қамтамасыз етiлген мiндеттеме сомасынан асып кетсе, кепiл ұстаушы оны алған кезден бастап банктiк үш күннiң iшiнде кепiл берушiге айырмасын аударуға мiндеттi.
Ескерту. 306-бапқа өзгерту енгізілді - ҚР 2000.12.18. N 128 Заңымен.
307-бап. Кепiл туралы шарттың мазмұны мен нысаны
1. Кепiл туралы шартта кепiл нысанасы, кепiлмен қамтамасыз етiлетiн мiндеттеменiң мәнi, мөлшерi немесе ең жоғары сомасы және орындалу мерзiмi көрсетiлуге тиiс. Егер кепіл нысанасы жылжымайтын мүлік болған жағдайда, кепіл туралы шартта оның бағасы көрсетілуге тиіс.
Кепілмен қамтамасыз етудің нақты сипаттамасы талап етілместен және кепіл нысанасы бағаланбастан, кепіл нысанасы болып табылатын жылжымалы мүліктің және (немесе) жылжымалы мүліктің жекелеген санаттарының (машина жабдығын және материалдық айналым құралдарының қорларын қоса алғанда) кепіл нысанасының жалпы сипаттамасы болуы мүмкін.
Кепіл туралы шартта кепiлге салынған мүлiк тараптардың қайсысында екендігі және оны пайдалануға болатындығы да көрсетiлуге тиiс.
Кепіл нысанасын бағалау теңгемен көрсетіледі және егер Қазақстан Республикасының заңдарында өзгеше белгіленбесе, тараптардың келісімімен айқындалуы мүмкін. Шетелдік валютада міндеттемені қамтамасыз ететін кепіл
нысанасын бағалау теңгемен және кепіл туралы шарт жасасылған күнгі валютаны айырбастаудың нарықтық бағамы бойынша міндеттеме валютасымен көрсетіледі.
2. Кепiл туралы шарт жазбаша нысанда жасалуға тиiс. 3. Осы баптың 1 және 2-тармақтарындағы қағидаларды сақтамау кепiл туралы
шарттың маңызсыздығына алып келеді. Ескерту. 307-бап жаңа редакцияда - ҚР 2011.02.10 N 406-IV (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); өзгерістер енгізілді - ҚР 29.12.2014 № 269-V (01.01.2015 бастап қолданысқа енгізіледі); 22.04.2015 № 308-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.05.2018 № 156-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
308-бап. Кепiлдi тiркеу
1. Егер осы Кодекстен өзгеше туындамаса, тіркелуге жататын мүлікті кепілге салу осы мүліктің тіркелуін жүзеге асыратын органда тіркелуге тиіс.
Жылжымайтын мүлік кепілі жылжымайтын мүлікке құқықтардың тіркелуін жүзеге асыратын органда мемлекеттік тіркелуге жатады.
2. Кепiл нысанасының өзгеруі, сондай-ақ Қазақстан Республикасының заңнамалық актілерінде белгіленген жағдайларда басқа да өзгерістер тiркелуге жатады.
Міндетті тiркелуге жатпайтын кепiлдiң өзгеруі қатысушылардың қалауы бойынша тіркелуі мүмкін.
3. Кепілді тоқтату туралы жазба тізілімге: 1) негізгі міндеттеменің орындалуына байланысты кепіл ұстаушының өтініші
негізінде кепілді тоқтатуды тіркеу кезінде; 2) Қазақстан Республикасының заңнамалық актілерінде көзделген тәртіппен
кепіл нысанасынан ақы өндіріп алу кезінде; 3) кепіл шартының бұзылуына байланысты кепілді тоқтатуды тіркеу кезінде; 4) осы Кодексінің 322-бабында көзделген өзге де негіздер бойынша кепілді
тоқтату кезінде енгізіледі. 4. Кепілмен қамтамасыз етілген міндеттемені орындаған кепіл беруші
тізілімдегі кепіл туралы жазбаның жойылуын талап етуге құқылы. Кепіл ұстаушы кепіл берушінің талабы бойынша тіркеуді жүргізетін органға қажетті
құжаттар мен жазбаша өтініштерді табыс етуге міндетті. Кепіл ұстаушы бұл міндеттемелерді орындамаған немесе уақтылы орындамаған жағдайда, кепіл беруші өзіне келтірілген залалдың өтелуін талап етуге құқылы.
Ескерту. 308-бап жаңа редакцияда - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен; өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
309-бап. Кепiл ұстаушының құқығы қолданылатын мүлiк
1. Кепiл мәнi болып табылатын затқа кепiл ұстаушының құқығы (кепiл құқығы), егер шартта немесе заң құжаттарында өзгеше көзделмесе, оның керек-жарақтары мен бөлiнбейтiн жемiстерiне де қолданылады.
Шартта немесе заңнамалық актілерде көзделген жағдайларда кепiл құқығы кепiлге қойылған мүлiктi пайдалану нәтижесiнде алынған бөлiнетiн жемiстерге, өнiмге және кірістерге, сондай-ақ кейіннен иемденген активтер мен ауыстырылған активтерге қолданылуы мүмкін.
Егер кепіл нысанасы жылжымалы мүлік болған жағдайда, кепіл құқығы, егер шартта өзгеше көзделмесе, оны пайдалану нәтижесінде алынған бөлінетін жемістерге, өнімге және кірістерге (оның ішінде кейіннен сатып алынған активтер мен ауыстырылған активтерге) қолданылады.
Бұл ретте кепіл құқығы бөлiнетiн жемiстерге, өнiмге және кірістерге (оның ішінде кейіннен сатып алынған активтер мен ауыстырылған активтерге) талаптың нақты қанағаттандырылған кезіне кепілге салынған жылжымалы мүлікпен қамтамасыз етілмейтін көлемінде ғана қолданылады.
2. Кәсiпорынның немесе өзге мүлiк кешенiнiң ипотекасы жағдайында жалпы кепiл құқығы, егер заң құжаттарында немесе шартта өзгеше көзделмесе, талап ету, соның iшiнде ипотека кезiнде сатып алынған құқықтары мен ерекше құқықтарды қоса алғанда, оның барлық қозғалмалы және қозғалмайтын мүлкiне қолданылады.
3. Үй немесе ғимарат ипотекасына осы үй немесе ғимарат тұрған жер учаскесiне не осы учаскенiң кепiлге салынатын объектiнiң қызметiн қамтамасыз ететiн бөлiгiне құқық нақ сол шарт бойынша бiр мезгiлде жасалатын ипотека арқылы жол берiледi.
Ескерту. 309-бапқа өзгерістер енгізілді - ҚР 29.12.2014 № 269-V (01.01.2015 бастап қолданысқа енгізіледі); 24.05.2018 № 156-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
310-бап. Кепiл құқығының пайда болуы
1. Кепiл туралы шартта өзгеше көзделмегендiктен, кепiл құқығы кепiлi тiркелуге жататын мүлiк жөнiндегi шартты тiркеу кезiнен бастап, басқа мүлiк жөнiнен - бұл мүлiктi кепiл ұстаушыға берген кезден бастап, ал егер ол беруге жатпаса, кепiл туралы шарт жасасқан кезден бастап пайда болады.
2. Айналымдағы тауарларға кепiл құқығы осы Кодекстiң 327-бабының 2- тармағының ережелерiне сәйкес пайда болады.
311-бап. Кейiнгi кепiл (кепiлдi қайталап салу)
1. Егер кепiлге салынған мүлiк басқа талаптарды қамтамасыз ететiн басқа бiр кепiлдiң нысанасы болса (кепiлдi қайталап салу), кейiнгi кепiл ұстаушының талабы алдыңғы кепiл ұстаушылардың талаптары қанағаттандырылғаннан кейiн кепiл мәнiнiң құнынан қанағаттандырылады.
2. Егер кепiл туралы бұрынғы шарттарда тыйым салынбаса, қайтадан кепiл салуға жол берiледi.
3. Кепiл берушi келесi кепiл ұстаушысының әрқайсысына осы мүлiктiң бұрыннан бар барлық кепiлдерi жөнiндегi мәлiметтердi хабарлауға мiндеттi және осы мiндеттiң орындалмауы себептi кепiл ұстаушыларға келтiрiлген залалдар үшiн жауап бередi.
Ескерту. 311-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211, 2007.01.12. N 225 Заңдарымен.
312-бап. Кепiлге салынған мүлiктi күтiп ұстау мен сақтау
1. Кепiл берушi немесе кепiл ұстаушы кепiлге салынған мүлiк олардың қайсысында екенiне қарай, егер заң құжаттарында немесе шартта өзгеше көзделмесе:
1) кепiлге салынған мүлiктiң сақталуын қамтамасыз ету үшiн, соның iшiнде оған үшiншi жақтар тарапынан қол сұғылып, талаптар қойылуынан қорғау үшiн қажеттi шаралар қолдануға;
2) кепiлге салынған мүлiктiң жоғалу немесе бүлiну қаупiнiң пайда болуы туралы екiншi тарапқа дереу хабарлауға мiндеттi.
2. Кепiл ұстаушы және кепiл берушi басқа тарапта тұрған кепiлге салынған мүлiктi құжаттар бойынша және оның iс жүзiнде бар екендiгiн, көлемiн, жай-күйiн және сақталу жағдайын тексеруге құқылы.
3. Кепiлге салынған мүлiктiң жоғалу немесе бүлiну қаупi туып, кепiл ұстаушы осы баптың 1-тармағында көрсетiлген мiндеттердi өрескел бұзған жағдайда кепiл берушi кепiлдiң мерзiмiнен бұрын тоқтатылуын талап етуге құқылы.
313-бап. Кепiлге салынған мүлiктiң жоғалу немесе бүлiну салдары
1. Егер кепiл туралы шартта өзгеше көзделмесе, кепiл берушi кепiлге салынған мүлiктiң кездейсоқ қирау немесе бүлiну тәуекелiн мойнына алады.
2. Кепiл ұстаушы, егер осы Кодекстiң 359-бабына сәйкес жауапкершiлiктен босатыла алатынын дәлелдей алмаса, өзiне кепiлге берiлген нәрсенiң толық немесе iшiнара жоғалуы немесе бүлiнуi үшiн жауап бередi.
3. Кепiл ұстаушы кепiлге салынған нәрсенiң жоғалғаны үшiн оның нақты құны мөлшерiнде, ал оның зақымданғаны үшiн кепiлге салынған нәрсенiң кепiл ұстаушыға оны берген кезде бағаланған сомасына қарамастан, осы құн төмендеген сома мөлшерiнде жауап бередi.
4. Егер кепiлге салынған нәрсенiң бүлiнуi салдарынан ол өзiнiң тiкелей мақсатында пайдаланыла алмайтындай болып өзгерiп кетсе, кепiл берушi одан бас тартуға және оны жоғалтқаны үшiн өтем талап етуге құқылы.
5. Шартта кепiл ұстаушының кепiлге салынған нәрсенiң жоғалуы немесе зақымдануы арқылы келтiрiлген өзге де шығындарды өтеуi көзделуi мүмкiн.
6. Кепiлмен қамтамасыз етiлген мiндеттеме бойынша борышқор болып табылатын кепiл берушi кепiл ұстаушыға кепiлге салынған нәрсенiң жоғалуынан немесе бүлiнуiнен келтiрiлген шығындарды өтеу туралы талапты кепiлмен қамтамасыз етiлген мiндеттеменi орындауға қоса есептеуге құқылы.
314-бап. Кепiлге салынған нәрсенi ауыстыру және қалпына келтiру
1. Кепiлге салынған нәрсенi ауыстыруға, егер заң құжаттарында немесе шартта өзгеше көзделмесе, кепiл ұстаушының келiсiмiмен жол берiледi.
2. Егер кепiлге салынатын нәрсе жойылса немесе бүлiнсе не оған меншiк немесе шаруашылық жүргiзу құқығы заң құжаттарында белгiленген негiздер бойынша тоқтатылса, кепiл берушi кепiлге салынған нәрсенi ақылға қонымды мерзiмде қалпына келтiруге немесе оны басқа бiр сондай мүлiкпен алмастыруға құқылы.
315-бап. Кепiлге салынған нәрсенi пайдалану және оған билiк ету
1. Егер шартта өзгеше көзделмесе және кепiл мәнiнен өзгеше туындамаса, кепiл берушi кепiл нысанасын оның мақсатына сәйкес пайдалануға, соның iшiнде одан жемiстер мен табыстар табуға құқылы.
2. Егер заң құжаттарында немесе шартта өзгеше көзделмесе және кепiл мәнiнен туындамаса, кепiл берушi кепiл ұстаушының келiсiмiмен кепiлге салынған нәрсенi меншiк, шаруашылық жүргiзу немесе оралымды басқару
иелiгiнен айыруға, оны басқа жаққа жалға немесе тегiн пайдалануға беруге не өзге түрде оған билiк етуге құқылы.
Кепiл берушiнiң кепiлге салынған мүлiктi мұраға қалдыру құқығын шектейтiн келiсiмi маңызсыз болады.
3. Кепiл ұстаушы өзiне кепiлге берiлген нәрсенi шартта көзделген реттерде ғана кепiл берушiге оны пайдалану туралы үнемi есеп бере отырып пайдалануға құқылы. Шарт бойынша кепiл ұстаушыға кепiлге салынған нәрсенiң негiзгi мiндеттеменi өтеу мақсаттарында немесе кепiл берушiнiң мүдделерi үшiн жемiстер мен табыстар табу мiндетi жүктелуi мүмкiн.
Ескерту. 315-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
316-бап. Кепiл ұстаушының кепiлге салынған нәрсе жөнiндегi құқықтарын қорғау
1. Кепiлге салынған мүлiк болған немесе болуға тиiс кепiл ұстаушы оны өзгенiң заңсыз иеленуiнен, соның iшiнде кепiл берушiнiң өзiнен де талап етiп алуға құқылы.
2. Шарт ережелерi бойынша кепiл ұстаушыға өзiне кепiлге берiлген нәрсенi пайдалану құқығы берiлген реттерде, ол басқа адамдардан, соның iшiнде кепiл берушiден де өз құқығының қандай да болсын бұзылуы иелiктен айырумен байланысты болмағанымен, оның бұзылуын жоюды талап ете алады.
317-бап. Кепiлге салынған мүлiктен ақы өндiрiп алу негiздерi
1. Борышқор өзi жауап беретiн кепiлмен қамтамасыз етiлген мiндеттеменi орындамаған немесе тиiсiнше орындамаған ретте кепiл ұстаушының (несие берушiнiң) талаптарын қанағаттандыру үшiн кепiлге салынған мүлiктен ақы өндiрiп алуы мүмкiн.
2. Егер борышқордың кепiлмен қамтамасыз етiлген мiндеттеменi бұзуы өте болмашы болып және соның салдарынан кепiл ұстаушы талаптарының мөлшерi кепiлге салынған мүлiктiң құнына көрiнеу сәйкес келмесе, кепiлге салынған мүлiктен ақы өндiрiп алудан бас тартылуы мүмкiн.
Бір мезгілде мынадай жағдайлар болған кезде: 1) орындалмаған міндеттеменің сомасы (тұрақсыздық айыбы (айыппұл,
өсімпұл) есепке алынбастан) тараптар кепіл туралы шартта айқындаған, кепілге салынған мүлік құнының он пайызынан кемін құрағанда;
2) кепілмен қамтамасыз етілген міндеттемені орындау мерзімін өткізіп алу кезеңі үш айдан кем болғанда, кепілмен қамтамасыз етілген міндеттемені бұзу
өте болмашы және кепіл ұстаушы талаптарының мөлшері кепiлге салынған мүлiктiң құнына анық мөлшерлес емес болып табылады.
Ескерту. 317-бапқа өзгеріс енгізілді - ҚР 17.07.2015 № 333-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
318-бап. Кепiлге салынған нәрседен ақы өндiрiп алу тәртiбi
1. Кепiл ұстаушының талаптарын кепiлге салынған мүлiктiң құнынан қанағаттандыру, егер осы Кодексте және басқа заң құжаттарында немесе шартта өзгеше көзделмесе, сот тәртiбiмен жүзеге асырылады.
2. Кепiл туралы шартта, сондай-ақ осы Кодексте және өзге де заң құжаттарындакөзделген реттерде кепiл ұстаушы кепiлге салынған мүлiктi соттан тыс тәртіппен сауда өткiзу (аукцион) арқылы өз бетiмен сатуға құқылы. Ақшалай қарызды қамтамасыз ететiн кепiлге салынған нәрсенi сату жөнiнде кепiл ұстаушы банктiң де осындай құқығы болады. Қазақстан Республикасының жылжымайтын мүлік ипотекасы туралы заңнамалық актісінде көзделген жағдайларда, кепілге қойылған жылжымайтын мүлікті соттан тыс өткізуге жол берілмейді.
Қаржы жүйесінің тұрақтылығын қамтамасыз ету жөніндегі шараларды жүзеге асыру шеңберінде қарыз бойынша қамтамасыз ету болып табылатын кепіл нысанасына өндіріп алуды қолдану ерекшеліктері Қазақстан Республикасының заңдарында белгіленеді.
Ескерту. 318-бапқа өзгерту енгізілді - ҚР 2011.02.10 N 406-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 168-VІ (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
319-бап. Кепiлге салынған мүлiктi сату
1. Кепілге салынған мүлiктi өткiзу (сату), егер заң құжаттарында өзгеше тәртiп белгiленбесе, iс жүргiзу заңдарында белгiленген тәртiп бойынша жария саудаға салып сату арқылы жүргiзiледi.
1-1. Ақшаны және ақшалай мiндеттеме бойынша құқықтарды (талаптарды) кепiлге беру кезiнде - кепiлге қойылған осы мүлiктi өткiзу кепiл нысанасы болып табылатын немесе ақшалай мiндеттеме бойынша кепiлге қойылған құқықтар ( талаптар) бойынша тиесiлi ақшаны кепiл ұстаушыға беру жолымен, ал кепiл
нысанасына өндiрiп алу қолданылған кезде ақшаны беру мүмкiн болмаған жағдайда кепiл берушiнiң кепiл нысанасына құқықтарын кепiл ұстаушыға ауыстыру жолымен жүргiзiледi.
Егер кепiл нысанасы болып табылатын немесе ақшалай міндеттеме бойынша кепілге қойылған құқықтар (талаптар) бойынша тиесілі ақша сомасы кепiл ұстаушының кепiлмен қамтамасыз етiлген талаптарының мөлшерiнен асып кетсе , айырма кепiл берушiге қайтарылады. Кепiл ұстаушының талаптарын өтеу үшiн ақша сомасы жетпеген жағдайда, заңнамалық актiлерде немесе шартта өзгеше нұсқау болмаған ретте, ол кепiлде негiзделген артықшылықтарды пайдаланбай, жетпеген соманы борышкердiң басқадай мүлкінен алуға құқылы.
2. Кепiлге салынған мүлiктi соттан тыс тәртіппен сату ерекшелiктерi осы Кодекспен және қозғалмайтын мүлiк ипотекасы туралы Заңмен белгiленедi. Ипотеканы iске асыру үшiн қозғалмайтын мүлiк ипотекасы туралы Заңмен белгiленген ережелер мен рәсiмдер, егер осы Кодексте өзгеше көзделмесе, кепiлдiң басқа түрлерiн орындау кезiнде мүлiктi сату үшiн қолданылады.
3. Кепiл берушiнiң өтiнiшi бойынша сот кепiлге салынған мүлiктен ақы өндiрiп алу туралы шешiмiнде жеке тұлғалардың кепілге салынған мүлкінің жария саудаға салынып сатылуын бiр жылға дейiнгi мерзiмге және заңды тұлғалардың кепілге салынған мүлкін бір айға дейінгі мерзімге кейiнге қалдыруға құқылы. Кейiнге қалдыру осы мүлiктi кепiлге салу арқылы қамтамасыз етiлген мiндеттеме бойынша тараптардың құқықтары мен мiндеттерiн қозғамайды және борышкерді кейiнге қалдырылған уақыт iшiнде кредитордың өскен залалдары мен тұрақсыздық айыбы сомасын өтеуден босатпайды.
4. Кепiл берушi мен кепiл ұстаушыны қоса алғанда, кез-келген заңды тұлғалар мен азаматтар саудаға қатысуға құқылы.
Сауда басталардың алдында сот немесе сенiм бiлдiрiлген жақ (осы Кодекстiң 320-бабы) саудаға қатысушының әрқайсысынан кепiлдiк жарна төлеудi талап етуге құқылы. Кепiлдiк жарналар сауда аяқталғаннан кейiн қайтарылып берiлуге тиiс. Саудада ұтып шыққан қатысушының кепiлдiк жарнасы түпкiлiктi бағаның есебiне есептеледi. Саудада ұтып шыққан, бiрақ түпкiлiктi бағаны төлемеген қатысушының кепiлдiк жарнасы қайтарылмайды және соттың немесе сенiм бiлдiрiлген жақтың билiгiнде қалады.
5. Қатысқан сатып алушы екеуден аз болуы себептi сауда жасалмайтыны жарияланған жағдайда кепiл ұстаушы кепiлге салынған мүлiктi бағалаушы жасаған бағалау туралы есеп негiзiнде сот шешімімен белгіленген немесе сенiм бiлдiрiлген тұлға белгілеген ағымдағы бағалау құны бойынша өз меншiгiне аударуға, не жаңадан сауда белгiлеудi талап етуге құқылы.
6. Егер кепiлге салынған мүлiктi өткiзу кезiнде түскен сома кепiл ұстаушының талаптарын өтеуге жеткiлiксiз болса, ол заң құжаттарында немесе шартта өзгеше нұсқаулар болмаған жағдайда жеткiлiксiз соманы борышқордың басқа мүлкiнен кепiлге негiзделген артықшылықты пайдаланбай-ақ алуға құқылы .
Егер кепiлге салынған мүлiктi сату кезiнде түскен сома кепiл ұстаушының кепiлмен қамтамасыз етiлген талабы мөлшерiнен асып кетсе, айырмасы кепiл берушiге қайтарылады.
7. Борышкер мен үшiншi тұлға болып табылатын кепiл берушi (заттай кепілгер) кепiл нысанасы сатылғанға дейiнгi кез келген уақытта оған өндiрiп алуды қолдануды және оны сатуды кепiлмен қамтамасыз етiлген мiндеттеменi немесе оның орындалу мерзiмi өтiп кеткен бөлiгiн орындап, тоқтатуға құқылы. Бұл құқықты шектейтiн келiсiм маңызсыз болады.
Ескерту. 319-бапқа өзгерістер енгізілді - ҚР 2000.11.08 N 96, 2007.01.12 N 225 , 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 10.01.2018 № 134-VI (алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі); 02.07.2018 № 168-VІ (алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
320-бап. Кепiлге салынған мүлiктi соттан тыс мәжбүр ету тәртiбiмен сату
1. Кепiлге салынған мүлiк соттан тыс мәжбүр ету тәртiбiмен сатылған жағдайда сауданы кепiлмен қамтамасыз етiлген мiндеттеме бұзылған ретте кепiл ұстаушының кепiлге салынған мүлiктi өткiзуге сенiмхаты бар сенiм бiлдiрiлген заңды тұлға мен азамат жүргiзедi.
2. Сенiм бiлдiрiлген адам мынадай рәсiмдердi орындайды: 1) кепiл берушiге мiндеттеменiң орындалмағаны туралы хабарлама жазады
және оны кепiл туралы шарт тiркелген органда тiркейдi; 2) хабарламадан туындайтын талаптар қанағаттандырылмаған жағдайда,
бiрақ мұны кепiл берушiге жiберер кезден бастап отыз күннен кейiн, кепiлге салынған мүлiктiң саудасы туралы хабарлама жазады, оны кепiл туралы шарт тiркелген органда тiркеп кепiл берушiге тапсырады немесе тапсырыс хатпен кепіл шартында көрсетілген мекенжай бойынша кепіл берушіге жібереді;
3) сауда туралы хабарландыруды жергiлiктi баспасөзде ресми түрде жариялайды.
Ескерту. 320-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
321-бап. Кепiлмен қамтамасыз етiлген мiндеттемелердi мерзiмiнен бұрын орындау және кепiлге салынған мүлiктен ақы өндiрiп алу
1. Кепiл ұстаушы кепiлмен қамтамасыз етiлген мiндеттемелердi мерзiмiнен тыс бұрын орындауды мына жағдайларда:
1) егер кепiл туралы шарттың ережелерiне сәйкестендiрiлмей кепiлге салынған нәрсе қалдырылған кепiл берушiнiң иелiгiнен шығып кетсе;
2) кепiл берушi кепiлге салынған нәрсенi ауыстыру туралы ережелердi бұзған (осы Кодекстiң 314-бабы);
3) егер кепiл берушi осы Кодекстiң 314-бабындағы 2-тармақта көзделген құқықты пайдаланбаса, кепiл ұстаушы жауап бермейтiн (осы Кодекстiң 313- бабының 2-тармағы) мән-жайлар бойынша кепiлге берiлген нәрсе жоғалған жағдайда;
4) кепіл берушіде өзге мүлік болмаған кезде кепіл ұстаушы талабының алдында басымдыққа ие болмайтын үшінші бір тұлғалар алдындағы атқарушылық құжаттар бойынша кепіл берушінің міндеттемелерін орындау мақсатында кепілге салынған нәрседен ақы өндіріп алуды талап етуге құқылы.
2. Кепiл ұстаушы кепiлмен қамтамасыз етiлген мiндеттемелердi мерзiмiнен бұрын орындауды талап етуге құқылы, ал егер оның талабы қанағаттандырылмаса:
1) кепiл берушi кейiнгi кепiл туралы ережелердi бұзған; 2) кепiл берушi осы Кодекстiң 312-бабындағы 1-тармақтың 1 және 2-
тармақшасында және 2-тармақта көзделген мiндеттемелердi орындамаған; 3) кепiл берушi кепiлге салынған мүлiкке билiк ету туралы қағидаларды (осы
Кодекстiң 315-бабының 2-тармағы) бұзған; 4) кепіл беруші кепілмен қамтамасыз етілген міндеттемені бұзған (осы
Кодекстің , және 722-баптары, "Жылжымайтын мүлiк ипотекасы туралы"317 720 1995 жылғы 23 желтоқсандағы Қазақстан Республикасы Заңының 20-бабы) жағдайда кепiл нысанасына өндiрiп алуды қолдануға құқылы.
Ескерту. 321-бапқа өзгерістер енгізілді - ҚР 2010.04.02 N 262-IV (2010.10.21 бастап қолданысқа енгізіледі); 17.07.2015 № 333-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
322-бап. Кепiлдi тоқтату
1. Кепiл: 1) кепiлмен қамтамасыз етiлген мiндеттемелер тоқтатылғанда; 2) осы Кодекстiң 312-бабының 3-тармағында көзделген негiздер болған кезде
кепiл берушiнiң талабы бойынша; 3) егер кепiл берушi осы Кодекстiң 314-бабының 2-тармағында көзделген
құқықты пайдаланбаса, кепiлге салынған зат құрыған немесе кепiлге салынған құқық тоқтатылған ретте;
4) кепiлге салынған мүлiктi жария саудаға салып сатқан ретте, сондай-ақ оны сату мүмкiн болмаған ретте (осы Кодекстiң 319-бабы) тоқтатылады.
2. Кепiлдiң тоқтатылғаны туралы кепiл туралы шарт тiркелген реестрде белгi соғылуға тиiс.
3. Кепiлмен қамтамасыз етiлген мiндеттемелердiң орындалуы салдарынан не кепiл берушiнiң талабы бойынша кепiл тоқтатылған кезде (осы Кодекстiң 312- бабының 3-тармағы) кепiл ұстаушы өзiнде кепiлде болған мүлiктi кепiл берушiге дереу қайтаруға мiндеттi.
323-бап. Кепiлге салынған мүлiкке құқық басқа тұлғаға құқықты мирасқорлық тәртiбiмен көшуi кезiнде кепiлдiң сақталуы
1. Кепiлге салынған мүлiктi ақылы немесе тегiн иелiктен айыру нәтижесiнде не әмбебап құқықты мирасқорлық тәртiп бойынша мүлiкке меншiк құқығы немесе шаруашылық жүргiзу құқығы кепiл берушiден басқа адамға көшкен ретте кепiл құқығы сақталып қалады.
Кепiл берушiнiң құқықты мирасқоры кепiл берушiнiң орнын басады және, егер кепiл ұстаушымен келiсiмде өзгеше белгiленбесе, кепiл берушiнiң барлық мiндеттерiн атқарады.
2. Егер кепiл берушiнің кепiлге салынған нәрсе болып табылатын мүлкi құқықты мирасқорлық тәртiбiмен бiрнеше адамға көшсе, құқықты мирасқорлардың әрқайсысы (мүлiктi иеленушiлер) аталған мүлiктiң өзiне көшкен бөлiгiне кепiлмен қамтамасыз етiлген мiндеттеменi орындамағандығы жөнiндегi кепiлден туындайтын зардаптарын көтередi. Алайда кепiлге салынған нәрсе бөлiнбейтiн болса немесе өзге негiздер бойынша құқықты мирасқорлардың бiрлескен ортақ меншiгiнде қалса, олар ортақ кепiл берушiлерге айналады.
324-бап. Кепiлге салынған мүлiктi күштеп алу салдары
1. Егер кепiл берушiнiң кепiлге салынатын мүлiкке меншiк құқығы заң құжаттарында белгiленген негiздер мен тәртiп бойынша мемлекеттiк қажеттер
үшiн алып қою (сатып алу), реквизициялау немесе ұлт меншiгiне айналдыру салдарынан тоқтатылып, кепiл берушiге басқа мүлiк немесе тиiсiнше өтем берiлсе, кепiл құқығы оның орнына берiлген мүлiкке қолданылады, не тиiсiнше кепiл ұстаушы кепiл берушiге тиесiлi өтем сомасынан өз талаптарын артықшылықпен қанағаттандыру құқығына ие болады. Кепiл ұстаушы кепiлмен қамтамасыз етiлген мiндеттемелердi мерзiмiнен бұрын орындауды талап ете алады (осы Кодекстiң 321-бабының 1-тармағы).
2. Кепiлге салынатын нәрсе болып табылатын мүлiк заң құжаттарында белгiленген тәртiп бойынша осы мүлiктiң шын мәнiндегi меншiк иесi басқа тұлға болып табылатындығына сүйенiп, не әкімшілік немесе қылмыстық құқық бұзушылық жасағаны үшiн санкция түрiнде кепiл берушiден алынған реттерде бұл мүлiктiң кепiлге салынғаны тоқтатылады. Бұл ретте кепiл ұстаушы кепiлмен қамтамасыз етiлген мiндеттеменiң мерзiмiнен бұрын орындалуын талап етуге құқылы.
Ескерту. 324-бапқа өзгеріс енгізілді - ҚР 03.07.2014 № 227-V Заңымен ( 01.01.2015 бастап қолданысқа енгізіледі).
325-бап. Кепiл туралы шарт бойынша құқықтарды беру
1. Кепiл ұстаушы кепiл туралы шарт бойынша несие берушiнiң құқықтарын беру туралы ережелердi сақтай отырып талапқа көну арқылы өз құқықтарын басқа жаққа беруге (осы Кодекстiң -339 347-баптары) құқылы.
2. Кепiл туралы шарт бойынша кепiл ұстаушының өз құқықтарын басқа адамға беруi, егер кепiлмен қамтамасыз етiлген негiзгi мiндеттеме бойынша борышқорға талап ету құқықтары нақ сол адамға берiлсе, заңды болады.
3. Алынып тасталды - ҚР 1998.03.02 № 211 Заңымен. Ескерту. 325-бапқа өзгеріс енгізілді - ҚР 1998.03.02 № 211 Заңымен.
326-бап. Кепiлмен қамтамасыз етiлген мiндеттеме бойынша борышты аудару
Егер кепiл берушi жаңа борышқор үшiн жауап беруге несие берушiге келiсiм бермесе, кепiлмен қамтамасыз етiлген мiндеттеме бойынша кепiл борышты басқа адамға аудару арқылы тоқтатылады.
327-бап. Айналымдағы тауарларды кепiлге салу
1. Тауарларды кепiл берушiде қалдыра отырып және кепiл берушiге кепiлге берілген мүлiктiң (тауар қорларының, шикiзаттың, материалдардың, жартылай фабрикаттардың, дайын өнiмнің және тағы басқалардың) құрамы мен нақты
нысанын өзгерту құқығын бере отырып, оларды кепілге салу айналымдағы тауарларды кепiлге салу деп танылады.
2. Кепiл берушi иелiктен айырған айналымдағы тауарлар оларды алушының меншiгiне, шаруашылық жүргiзуiне немесе оралымды басқаруына көшкен кезден бастап кепiлге салынған нәрсе болудан қалады, ал кепiл берушi сатып алған, кепiл туралы шартта аталған тауарлар оларға кепiл берушiнiң меншiк немесе шаруашылық жүргiзу құқығы пайда болған кезден бастап кепiлге салынған нәрсеге айналады.
3. Тараптардың келісімі бойынша кепіл туралы шартта айналымдағы тауарлардың жалпы құны кепіл туралы шартта көрсетiлген құннан кем болмауға тиіс деген талап көзделуі мүмкін.
Егер шартта өзгеше көзделмесе, айналымдағы кепiлге салынған тауарлар құнын кепiлмен қамтамасыз етiлген мiндеттеменiң орындалған бөлiгiне мөлшерлес кемітуге жол берiледi.
4. Кепiл берушi айналымдағы тауарларды кепiлге салу шарттарын бұзған кезде кепiл ұстаушы өзiнiң белгiлерiн кепiлге салынған тауарларға қою арқылы шарттың бұзылуы жойылғанға дейiн олармен операцияларды тоқтата тұруға құқылы.
Ескерту. 327-бапқа өзгерістер енгізілді - ҚР 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 24.05.2018 № 156-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.04.2019 № 241-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
328-бап. Ломбардта заттарды кепілге салу
1. Қысқа мерзімді қарыздарды қамтамасыз ету үшін азаматтардан жеке пайдалануға арналған жылжымалы мүлікті кепілге қабылдауды ломбардтар ретінде тіркелген заңды тұлғалар кәсіпкерлік қызмет ретінде жүзеге асыра алады, олардың қызметінің айрықша түрі:
1) жылжымалы мүлікті кепілге алу арқылы бір жылдан аспайтын мерзімге қысқа мерзімді қарыздар беру;
2) құрамында қымбат бағалы металдар мен қымбат бағалы тастар бар зергерлік бұйымдарды есепке алу, сақтау және сату болып табылады.
Ломбардтар инвестициялық қызметті жүзеге асыруға құқылы. 2. Ломбардта заттарды кепілге салу туралы шарт ломбардтың кепілге салу
билетін беруімен ресімделеді және онда кепілге қойылған мүлікті сақтандыру
туралы талап болуы мүмкін. Кепілге қойылған мүлікті сақтандыру ломбардтың есебінен жүзеге асырылады.
2-1. Ломбардта заттарды кепілге салу туралы шарт кепіл затының өткізілуіне байланысты тоқтатылады.
3. Ломбардтың кепілге қойылған заттарды пайдалануға және оларға билік етуге құқығы жоқ.
4. Ломбард, егер кепілге қойылған заттардың жоғалуы және бүлінуі еңсерілмейтін күштің салдарынан болғанын дәлелдей алмаса, заттардың жоғалғаны және бүлінгені үшін жауапты болады.
5. Ломбардтар өз қызметін ломбардтың жоғары органы бекітетін Ломбард операцияларын жүргізу ережелері болғанда ғана жүзеге асырады және онда мынадай ақпарат:
1) берілетін кредиттердің шекті сомалары мен мерзімдері; 2) берілетін кредиттер бойынша сыйақы ставкаларының шекті шамалары; 3) операциялар жүргізгені үшін ставкалар мен тарифтер; 4) ломбардтың және оның клиенттерінің құқықтары мен міндеттері, олардың
жауапкершілігі; 5) кепілге салу билетін жоғалтқан жағдайда кепіл берушіге дубликаттар беру
тәртібі; 6) өзге де талаптар қамтылуға тиіс.
Ломбард операцияларын жүргізу ережелері ломбардтың клиенттері көре алатындай жерге орналастырылуға тиіс.
Ломбардтар "Рұқсаттар және хабарламалар туралы" Қазақстан Республикасының Заңында белгіленген тәртіппен қаржы мониторингі жөніндегі уәкілетті органды өз қызметінің басталғаны немесе тоқтатылғаны туралы хабардар етуге міндетті.
6. Ломбардта заттарды кепілге салу туралы шарттың, осы Кодексте кепіл берушіге берілетін құқықтармен салыстырғанда, кепіл берушінің құқықтарын шектейтін талаптары шарт жасалған кезден бастап жарамсыз болады. Мұндай талаптардың орнына осы Кодекстің тиісті ережелері қолданылады.
7. Ломбардтар Қазақстан Республикасының қылмыстық жолмен алынған кірістерді заңдастыруға (жылыстатуға) және терроризмді қаржыландыруға қарсы іс-қимыл туралы заңнамасында көзделген талаптарды сақтауға міндетті.
Ескерту. 328-бап жаңа редакцияда - ҚР 2005.12.23. N 107 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен; өзгерістер енгізілді - ҚР 02.08.2015 № 343-V (01.04.2016 бастап қолданысқа енгізіледі); 21.01.2019 № 217-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
Параграф 4. Кепілдік және кепіл болушылық
Ескерту. 4 параграф жаңа редакцияда - Қазақстан Республикасының 1997.07.11. N 154 Заңымен.
329-бап. Кепiлдiк
1. Кепiлдiк бойынша кепiлдiк берушi, заң актiлерiнде көзделген жағдайларды қоспағанда, басқа жақтың (борышқордың) несие берушiсi алдында осы жақтың мiндеттемесiнiң орындалуына толық немесе борышқормен ортақтасып iшiнара жауап беруге мiндеттенедi.
2. Бiрлесiп кепiлдiк берген адамдар, егер кепiлдiк шартында өзгеше белгiленбесе, несие берушi алдында ортақтасып жауап бередi.
3. Кепiлдiк шарты болашақта туындайтын мiндеттеменi қамтамасыз ету үшiн де жасалуы мүмкiн.
330-бап. Кепiл болушылық
Кепiл болушылық бойынша кепiл болушы басқа жақтың (борышқордың) несие берушiсi алдында осы жақтың мiндеттемесiнiң орындалуына толық немесе iшiнара қосалқы жауап беруге мiндеттенедi.
331-бап. Кепiлдiктiң және кепiл болушылықтың негiзi мен нысаны
1. Кепiл болушылық немесе кепiлдiк шарттарының негiзiнде кепiлдiк және кепiл болушылық пайда болады. Кепiлдiктi қолдану заңмен белгiленуi мүмкiн.
2. Кепiлдiк немесе кепiлгерлік шарттары жазбаша нысанда жасалуға тиіс. Жазбаша нысанды сақтамау кепiлдiк немесе кепiлгерлік шартының маңызсыздығына алып келеді.
3. Егер кепiлдiк берушi немесе кепiл болушы борышқордың мiндеттеменi орындауын өз жауапкершiлiгiне алатынын несие берушiге жазбаша түрде хабарласа, ал несие берушi кепiлдiк берушiнiң немесе кепiл болушының ұсыныстарынан бұл үшiн жеткiлiктi болатын қажеттi уақыт iшiнде бас тартпаса, кепiлдiк немесе кепiл болушылық шарттарының жазбаша нысаны сақталған деп есептеледi.
4. Екiншi деңгейдегi банктер банк кепiлдiктерi мен кепiлгерлiгiн берудi уәкiлеттi органның лицензиясы негiзiнде осы Кодекске сәйкес және уәкiлеттi органның аталған операцияларды жүргiзу тәртiбiн реттейтiн нормативтiк құқықтық актiлерiн ескере отырып жүзеге асыра алады.
Екiншi деңгейдегi банктердiң осы Кодекстiң нормаларын сақтамай және уәкiлеттi органның нормативтiк құқықтық актiлерiнiң талаптарын ескермей берген банк кепiлдiктерi мен кепiлгерлiктерi олардың жарамсыз болуына әкеп соғады.
Ескерту. 331-бапқа өзгерістер енгізілді - ҚР 2001.03.02. № 162, 2003.07.10. № 483 (01.01.2004 бастап қолданысқа енгізіледі), 2007.01.12. № 225; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
332-бап. Кепiлдiк берушiнiң және кепiл болушының жауапкершiлiгi
1. Кепiлдiк және кепiл болушылық, егер шартта өзгеше белгiленбесе, тек заңды талапты ғана қамтамасыз етедi. Кепiлдiк берушi мен кепiл болушы, егер олар әрекет қабiлетсiздiгi туралы өздерiне күнi бұрын белгiлi болған борышқорға кепiл болса, ал несие берушi бұл мән-жайды бiлмесе, жауапкершiлiктен босатылмайды.
2. Кепiлдiк берушi несие берушi алдында, егер кепiлдiк шартында өзгеше белгiленбесе, борышқор сияқты айыпақы, сыйақы (мүдде) төлеудi қоса алғанда, борышты өндiрiп алу жөнiндегi сот шығындарын және борышқордың мiндеттеменi орындамауы немесе тиiсiнше орындамауы салдарынан туындаған несие берушiнiң басқа да зияндарын төлеуде тап сондай көлемде жауап бередi.
3. Кепiл болушы несие берушi алдында, егер кепiл болушылық шарттарында өзгеше көзделмесе, кепiл болушылықта көрсетiлген сома шегiнде жауапты болады. Қосалқы жауапкершiлiктi мойнына алған кепiл болушыға талаптар қойылғанға дейiн несие берушi бұл талапты борышқор қанағаттандыратындай, атап айтқанда, қарсы талапты есепке алу және белгiленген тәртiп бойынша борышқордың мүлкiнен ақы өндiрiп алу арқылы ақылға қонымды шаралар қолдануға тиiс.
333-бап. Кепiлдiк берушiнiң өзiне несие берушi талаптар қойған жағдайдағы құқықтары мен мiндеттерi
1. Кепiлдiк берушi, несие берушiнiң талаптарын қанағаттандырғанға дейiн бұл туралы борышқорға ескертуге, ал егер кепiлдiк берушiге қуыным жасалса, борышқорды iске қатыстыруға мiндеттi. Олай болмаған жағдайда борышқор өзiнiң несие берушiге қоймақшы болған қарсылықтарын кепiлдiк берушiнiң қайтарып қойған талабына қарсы қоюға құқылы.
2. Кепiлдiк берушi, егер кепiлдiк шартынан өзгеше туындамаса, несие берушiнiң талабына қарсы борышқор қоя алатын қарсылықтарды қоюға қақылы.
Кепiлдiк берушi бұл қарсылықтарға құқығын тiптi егер борышқор олардан бас тартқан немесе өзiнiң қарызын мойындаған жағдайда да жоғалтпайды.
334-бап. Мiндеттеменi орындаған кепiлдiк берушi мен кепiл болушының құқықтары
1. Мiндеттеменi орындаған кепiлдiк берушiге несие берушiнiң осы мiндеттеме жөнiндегi барлық құқықтары және кепiл ұстаушы ретiнде несие берушiге тиесiлi құқықтар кепiлдiк берушi несие берушiнiң талабын қанағаттандырған көлемде көшедi. Кепiлдiк берушi, сондай-ақ, борышқордан несие берушiге төленген соманың айыпақысын және сыйақысын (мүддесiн) төлеудi және борышқор үшiн жауапкершiлiкке байланысты шеккен өзге де залалдардың орнын толтыруды талап етуге қақылы.
2. Кепiлдiк берушi мiндеттеменi орындағаннан кейiн несие берушi борышқорға қойылған талапты куәландыратын құжаттарды кепiлдiк берушiге тапсыруға және осы талапты қамтамасыз ететiн құқықтарды беруге мiндеттi.
3. Осы баптың 1 және 2-тармақтарында белгiленген ережелер, егер заңдарда немесе кепiлдiк берушiнiң борышқорымен шартында өзгеше көзделмесе және олардың арасындағы қатынастарда өзгеше туындамайтын болса, қолданылады.
4. Кепiл болушы дәл осындай құқықтарға борышқордың несие берушi алдындағы мiндеттемесiн өзi орындаған бөлiгiнде ие болады.
335-бап. Борышқордың мiндеттеменi орындағаны туралы кепiлдiк берушi мен кепiл болушыға хабарлауы
Кепiлдiктен немесе кепiл болушылықпен қамтамасыз етiлген мiндеттеменi орындаған борышқор кепiлдiк берушiге немесе кепiл болушыға бұл туралы дереу хабарлауға мiндеттi. Олай болмаған жағдайда өз кезегiнде мiндеттеменi орындаған кепiлдiк берушi немесе кепiл болушы несие берушiден негiзсiз алынғанды өндiрiп алуға, не борышқорға керi талап қоюға қақылы. Соңғы жағдайда борышқор несие берушiден тек негiзсiз алынғанды ғана өндiрiп алуға қақылы.
336-бап. Кепiлдiктiң және кепiл болушылықтың тоқтатылуы
1. Кепiлдiк және кепiлгерлік өздерi қамтамасыз еткен мiндеттеменiң тоқтатылуымен бiрге, егер шартта кепiлдiкті тоқтатудың өзге де жағдайлары көзделмесе, сондай-ақ осы мiндеттеме кепiл мен кепiлгердің жауапкершiлiгiн соңғылардың келiсiмiнсiз арттыруға немесе өзге де теріс салдарларға алып келмейтіндей болып өзгерген жағдайда тоқтатылады.
2. Кепiлдiк және кепiл болушылық, егер кепiлдiк берушi немесе кепiл болушы несие берушiге жаңа борышқор үшiн жауап беруге келiсiм бермесе, кепiлдiкпен немесе кепiл болушылықпен қамтамасыз етiлген мiндеттеме жөнiндегi борышты басқа жаққа ауыстырумен тоқтатылады.
3. Кепiлдiк және кепiл болушылық, егер олар өздерi қамтамасыз еткен мiндеттеменi орындау мерзiмiнiң басталуына қарай борышқор немесе кепiлдiк берушi мен кепiл болушы ұсынған тиiстi дәрежедегi орындауды қабылдаудан несие берушi бас тартса тоқтатылады.
4. Кепiлдiк және кепiл болушылық оларға кепiлдiк немесе кепiл болушылық шартында көрсетiлген мерзiм бiткен кезде тоқтатылады. Егер мұндай мерзiм белгiленбесе, егер несие берушi кепiлдiкпен немесе кепiл болушылықпен қамтамасыз етiлген мiндеттеменi орындау мерзiмi басталған күннен бастап бiр жылдың iшiнде кепiлдiк берушiге немесе кепiл болушыға қуыным жасамаса, ол тоқталады. Негiзгi мiндеттеменiң орындалу мерзiмi көрсетiлмеген және белгiлеуге болмайтын немесе талап етуiмен белгiленген кезде, кепiлдiк және кепiл болушылық егер несие берушi кепiлдiк берушiге немесе кепiл болушыға кепiлдiк немесе кепiл болушылық шарты жасалған күннен бастап екi жылдың iшiнде қуыным жасамаса, егер заң актiлерiнде өзгеше көзделмесе, кепiлдiк пен кепiл болушылық тоқтатылады.
Ескерту. 336-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
Параграф 5. Кепілпұл
337-бап. Кепiлпұл ұғымы. Кепiлпұл туралы келiсiм нысаны
1. Уағдаласушы тараптардың бiреуiнiң шарт бойынша өзiнен алынатын төлемнiң есебiнен екiншi тарапқа және шарт жасау мен орындауды не өзге мiндеттеменi орындауды қамтамасыз етуге берiлетiн ақшалай сома кепiлпұл деп танылады.
2. Кепiлпұл туралы келiсiм кепiлпұлдың сомасына қарамастан жазбаша нысанда жасалуға тиiс. Бұл қағида негiзгi мiндеттемені нотариат куәландыруға тиiс болатын жағдайда да қолданылады. Жазбаша нысанды сақтамау кепiлпұл туралы келiсiмнің маңызсыздығына алып келеді.
Ескерту. 337-бапқа өзгерістер енгізілді - ҚР 2007.01.12. N 225; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
338-бап. Кепiлпұлмен қамтамасыз етiлген мiндеттеменi тоқтатудың және орындамаудың салдары
1. Мiндеттеменiң орындалуы басталғанға дейiн тараптардың келiсiмi бойынша не олардың кiнәсiнсiз-ақ оны орындаудың мүмкiндiгi болмауы салдарынан тоқтатылған жағдайда, кепiлпұл қайтарылуға тиiс.
2. Егер мiндеттеменiң орындалмауына кепiлпұл берген тарап жауапты болса, ол екiншi тарапта қалады, ал егер кепiлпұл алған тарап жауапты болса, ол екiншi тарапқа кепiлпұлдың екi еселенген сомасын төлеуге мiндеттi. Оның үстiне, шартта өзгеше көзделмегендiктен, мiндеттеменiң орындалмауына жауапты тарап екiншi тарапқа кепiлпұл сомасын ескере отырып, шеккен залалдың орнын толтыруға мiндеттi.
Параграф 6. Ұстап қалу
Ескерту. 6 параграфпен толықтырылды - Қазақстан Республикасы 2007.01.12. N 2 2 5 З а ң ы м е н .
338-1-бап. Ұстап қалу туралы жалпы ережелер
1. Борышқорға не борышқор көрсеткен тұлғаға берiлуге тиiс зат қарамағында болған несие берушi, борышқор осы заттың құнын төлеу немесе несие берушiге оған байланысты шығындар мен басқа да залалдарды өтеу жөнiндегi мiндеттеменi мерзiмiнде орындамаған жағдайда, тиiстi мiндеттеме орындалғанға дейiн оны ұстап қалуға құқылы.
Заттың құнын төлеуге немесе оған шыққан шығындарды және басқа да залалды өтеуге байланысты болмаса да, кәсiпкер ретiнде әрекет ететiн тараптардың мiндеттемелерiнен туындайтын талаптар да затты ұстап қалу арқылы қамтамасыз етiлуi мүмкiн.
2. Несие берушi өзiндегi зат иелiгiне түскеннен кейiн де оны иелену құқығын үшiншi тұлғаның алғанына қарамастан, ол затты ұстап қала алады.
3. Егер шартта өзгеше көзделмесе, осы баптың ережесi қолданылады.
338-2-бап. Ұстап қалынған мүлiк есебiнен талаптарды қанағаттандыру
Затты ұстап қалушы несие берушiнiң талаптары кепiлмен қамтамасыз етiлген талаптарды қанағаттандыру үшiн көзделген көлемде және тәртiппен заттың құнынан қанағаттандырылады.
Параграф 7. Кепілдік жарна
Ескерту. 18-тарау 7-параграфпен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа е н г і з і л е д і ) З а ң ы м е н .
338-3-бап. Кепілдік жарна ұғымы
1. Сауда-саттық немесе өзге де міндеттемені орындау кезінде шарт жасасу жөніндегі міндеттемелерді орындауды қамтамасыз ету үшін кепілдік жарнаны төлеушінің кепілдік жарнаны алушыға беретін ақша сомасы кепілдік жарна болып танылады.
2. Кепілдік жарнаны төлеу жөніндегі міндеттеме заңнамалық актілерде көзделген жағдайларда туындайды. Кепілдік жарнаны төлеу жөніндегі міндеттеме тараптардың келісіміне байланысты да туындайды.
338-4-бап. Кепілдік жарнамен қамтамасыз етілген міндеттемені орындамау, тоқтату немесе орындау салдары
1. Кепілдік жарнамен қамтамасыз етілген міндеттеме төлеушінің кінәсінен орындалмаған кезде кепілдік жарна екінші тарапта қалады.
2. Кепілдік жарнамен қамтамасыз етілген міндеттеме кепілдік жарнаны алушының кінәсінен орындалмаған не тараптардың келісімі бойынша немесе олардың кінәсінсіз орындаудың мүмкін болмауы салдарынан осы міндеттеме тоқтатылған кезде кепілдік жарна қайтарылуға жатады.
3. Егер осы Кодексте, өзге де заңнамалық актілерде, тараптардың келісімінде өзгеше көзделмесе немесе міндеттеменің мәнінен өзгеше туындамаса, шарт жасасу немесе кепілдік жарнамен қамтамасыз етілген өзге міндеттемені орындау кезінде кепілдік жарна сомасы жасалған шарт немесе өзге де кепілдік жарнамен қамтамасыз етілген міндеттеме бойынша кепілдік жарна алушыға тиесілі екінші тараптан түсетін төлемдердің есебіне жатқызылады.
19-тарау. Міндеттемедегі адамдардың ауыстырылуы
339-бап. Несие берушi құқықтарының басқа адамға ауысу негiздерi мен тәртiбi
1. Мiндеттеме негiзiнде несие берушiге тиесiлi құқықтың (талап етудiң) ол мәмiле (талап етудi беру) бойынша басқа адамға берiлуi; немесе ол құқық заң құжатының негiзiнде басқа адамға ауыстыруы мүмкiн.
Несие берушi құқықтарының басқа адамға ауысуы жөнiндегi ережелер регрестi талаптарға қолданылмайды.
2. Несие берушi құқықтарының басқа адамға ауысуы үшiн, егер заң құжаттарында немесе шартта өзгеше көзделмесе, борышқордың келiсiмi талап етiлмейдi.
3. Егер несие берушi құқықтарының басқа адамға ауысқаны жөнiнде борышқорға жазбаша түрде хабарланбаса, жаңа несие берушi осыдан туындайтын өзiне қолайсыз салдарға тәуекел етедi. Бұл жағдайда бастапқы несие берушiге мiндеттеменi орындағаны тиiстi несие берушiге орындағаны болып табылады.
4. Мiндеттеменiң жекелеген түрлерi бойынша талап ету құқығын берудiң ерекшелiктерi заң актiлерiнде белгiленуi мүмкiн.
Ескерту. 339-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
340-бап. Басқа адамдарға ауыстыруға болмайтын құқықтар
Несие берушiнiң жеке басымен тығыз байланысты құқықтардың, атап айтқанда алимент жөнiндегi және азаматтың өмiрiне немесе денсаулығына келтiрiлген зиянның орнын толтыру жөнiндегi талаптардың басқа адамға ауысуына жол берiлмейдi.
341-бап. Несие берушiнiң басқа адамға ауысатын құқықтарының көлемi
Егер заң құжаттарында немесе шартта өзгеше көзделмесе, бастапқы несие берушiнiң құқығы жаңа несие берушiге құқықтың ауысуы кезiнде болған көлемде және сондай жағдайларда ауысады. Атап айтқанда, жаңа несие берушiге мiндеттеменi орындауды қамтамасыз ететiн, сондай-ақ басқа да құқықты, соның iшiнде алынбаған сыйақыға (мүддеге) құқықты талап етуге байланысты құқықтар ауысады.
Ескерту. 341-бапқа өзгерту енгізілді - Қазақстан Республикасының 1997.07.11 . N 154 Заңымен.
342-бап. Жаңа несие берушiнiң құқықтарына дәлелдемелер
1. Борышқор талаптардың осы адамға ауысқанына дәлелдемелердi өзiне табыс еткенше жаңа несие берушiге мiндеттемелердi орындамауға құқылы.
2. Талап етудi басқа адамға берген несие берушi оған талап ету құқықтарын куәландыратын құжаттарды беруге және талапты жүзеге асыру үшiн маңызы бар мәлiметтердi хабарлауға мiндеттi.
343-бап. Жаңа несие берушiнiң талабына борышқордың қарсылық бiлдiруi
Борышқор мiндеттеме жөнiндегi құқықтардың жаңа несие берушiге ауысқаны туралы хабарды алар кезiнде бастапқы несие берушiге қоймақшы болған қарсылықтарын жаңа несие берушiнiң талаптарына қарсы қоюға құқылы.
344-бап. Несие берушi құқықтарының заң құжаттары негiзiнде басқа адамға ауысуы
Мiндеттеме жөнiндегi несие берушiнiң құқықтары заң құжаттары және соларда көрсетiлген мынадай жағдайлардың болуы негiзiнде:
1) несие берушiнiң құқықтарындағы әмбебап құқықты мирасқорлық нәтижесiнде;
2) заң құжаттарында мұндай ауысу мүмкiндiгi көзделсе, несие берушi құқықтарының басқа адамға ауысуы туралы сот шешiмi бойынша;
3) мiндеттеменi оның кепiл болушысы, тапсырушысы немесе осы мiндеттеме бойынша борышқор болып табылмайтын кепiлге зат берушiнiң орындалуы нәтижесiнде;
4) сақтандырушы сақтандыратын жағдайдың басталуына жауапты борышқорға несие берушiнiң құқықтарын алып берген кезде;
5) заң құжаттарында көзделген өзге жағдайларда басқа адамға ауысады. Ескерту. 344-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02
. N 211 Заңымен.
345-бап. Талап етудi беру шарттары
1. Несие берушiнiң талап етудi басқа адамға беруiне жол берiледi, себебi ол заң құжаттарына немесе шартқа қайшы келмейдi.
2. Егер несие берушiнiң жеке басының борышқор үшiн елеулi маңызы болса, борышқордың келiсiмiнсiз мiндеттеме жөнiндегi талап етудi беруге жол берiлмейдi.
346-бап. Талап етудi беру нысаны
1. Жазбаша (жай немесе нотариалды) түрде жасалған мәмiлеге негiзделген талап етудi беру тиiстi жазбаша түрде жасалуға тиiс.
2. Мемлекеттiк тiркеудi талап ететiн мәмiле бойынша талап етудi беру осы мәмiленi тiркеу үшiн белгiленген тәртiп бойынша тiркелуге тиiс.
3. Ордерлi бағалы қағаз бойынша талап етудi беру осы бағалы қағаздағы индоссамент арқылы жасалады (осы Кодекстiң 132-бабының 3-тармағы).
347-бап. Талап етудi берген несие берушiнiң жауапкершiлiгi
Талап етудi берген бастапқы несие берушi жаңа несие берушiнiң алдында оған берiлген талаптардың жарамсыздығы үшiн жауап бередi, бiрақ бұл талапты борышқордың орындамағаны үшiн бастапқы несие берушi жаңа несие берушiнiң алдында борышқор үшiн кепiл болуды өзiне алғаннан басқа жағдайда, сондай-ақ егер осы Кодексте немесе шартта өзгеше көзделмесе, жауап бермейдi.
Ескерту. 347-бапқа өзгерту енгізілді - Қазақстан Республикасының 2003.06.03 . N 426 Заңымен.
348-бап. Борыштың ауысуы
1. Борышқордың өз борышын басқа адамға ауыстыруына тек несие берушiнiң келiсiмiмен ғана жол берiледi.
2. Жаңа борышқор несие берушiмен бастапқы борышқордың арасындағы қатынастарға негiзделген қарсылықтарын несие берушiнiң талабына қарсы қоюға құқылы.
3. Борышты аудару нысанына тиiсiнше осы Кодекстiң 346-бабының 1 және 2- тармақтарындағы ережелер қолданылады.
4. Мiндеттеменiң жекелеген түрлерi бойынша қарызды аудару ерекшелiктерi заң актiлерiнде белгiленуi мүмкiн.
Ескерту. 348-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
20-тарау. Міндеттеменің бұзылғандығы үшін жауаптылық
349-бап. Мiндеттеменiң бұзылғандығы ұғымы
1. Мiндеттеменi орындамау, не тиiстi дәрежеде орындамау (мезгiлiнде орындамау, тауарлар мен жұмыстарды толық орындамау, мiндеттеме мазмұнында белгiленген басқа жағдайларды бұзып орындау) - тиiсiнше
орындамау оның бұзылуы деп түсiнiледi. Тиiстi дәрежеде орындауға мүмкiндiк болмаған жағдайда борышқор бұл туралы несие берушiге дереу хабарлауға мiндеттi.
2. Мiндеттеменi бұзғандық үшiн борышқорды жауапқа тарту несие берушiнiң талап етуi бойынша жүргiзiледi.
350-бап. Мiндеттеменiң бұзылуынан туындаған залалдардың орнын толтыру
1. Мiндеттеменi бұзған борышқор несие берушiге оның бұзылуынан туындаған залалдың орнын толтырып беруге мiндеттi (осы Кодекстiң 9-бабының 4-тармағы). Айып төлеумен қамтамасыз етiлген мiндеттемедегi залалдың орнын толтыру осы Кодекстiң 351-бабында көзделген ережелермен белгiленедi.
2. Мiндеттеменiң бұзылуынан туындаған залалдың орнын толтырудан борышкерді босату жөнiндегi мiндеттеме бұзылғанға дейiн қабылданған тараптардың келiсiмi маңызсыз болады, алайда тараптар өзара келiсiм бойынша мүлiктегi нақты келтiрiлген зиянды ғана өндiрiп алуды көздеуi мүмкiн.
3. Егер заңдарда немесе шартта өзгеше көзделмесе, залалды анықтаған кезде, мiндеттеме орындалуға тиiстi жерде, борышқор несие берушiнiң талабын өз ықтиярымен қанағаттандырған күнi, ал егер талап ерiктi түрде қанағаттандырылмаса, талап арыз берiлген күнi қолданылған баға назарға алынады. Мән-жай негiзге ала отырып, сот шешiм шығарған күнi не нақты төлем төленген күнi қолданылған бағаны назарға ала келiп, залалдың орнын толтыру туралы талапты қанағаттандыра алады.
4. Айырылып қалған пайданың мөлшерiн анықтаған кезде оны алу үшiн несие берушi алдын ала қолданған шаралар және осы мақсатта жасалған дайындықтар ескерiледi.
5. Егер мұның өзi мiндеттеменi бұзғаны үшiн жауапкершiлiктен жалтару мақсатымен жасалғанын дәлелдесе, несие берушi борышқордың, сондай-ақ оның мүлiк иесiнiң кез-келген iс-әрекетiн жарамсыз деп тануды талап етуге құқылы.
Ескерту. 350-бапқа өзгерістер енгізілді - ҚР 1998.03.02. N 211; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
351-бап. Залалдар және айып төлеу
1. Егер мiндеттеменiң орындалмағаны немесе тиiстi дәрежеде орындалмағаны үшiн айып төлеу белгiленсе, залалдар айып төлеумен жабылмаған бөлiгiнде өтеледi.
Қазақстан Республикасының заңнамалық актілерінде немесе шартта: залал толық сомасында тұрақсыздық айыбынан тыс өндiрiп алынуы мүмкiн; кредитордың таңдауы бойынша не тұрақсыздық айыбы, не шығын өндiрiп алынуы мүмкiн болатын жағдайлар көзделуi мүмкін.
Мiндеттеменiң орындалмағаны немесе тиiсінше орындалмағаны үшiн тұрақсыздық айыбы ғана белгiленуі мүмкін болатын жағдайлар Қазақстан Республикасының заңнамалық актілерінде айқындалады.
2. Мiндеттеменiң орындалмағаны немесе тиiстi дәрежеде орындалмағаны үшiн шектелген жауаптылық белгiленген жағдайларда айып төлеу арқылы жабылмаған бөлiгiнде, не одан тыс, не оның орнына өтелуге жататын залал осындай шектелумен белгiленген шекке дейiн өндiрiп алынуы мүмкiн.
Ескерту. 351-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
352-бап. Мiндеттеменiң бұзылуынан келтiрiлген моральдық нұқсанды өтеу
Мiндеттеменiң бұзылуынан келтiрiлген моральдық нұқсан осы Кодекстiң 350 -бабында көзделген залалдардан тыс өтеледi.
353-бап. Басқаның ақшасын заңсыз пайдаланғаны үшiн жауапкершiлiк
1. Ақша мiндеттемесiн орындамау салдарынан бiреудiң ақшасын заңсыз пайдаланғаны не оларды төлеу мерзiмiн өткiзiп жiбергенi, не оларды негiзсiз алғаны немесе басқа адамның есебiне сақтағаны үшiн тұрақсыздық айыпақы төленуге тиiс. Айыпақының мөлшерi ақша мiндеттемесiн немесе оның тиiстi бөлiгiн орындаған күнгi Қазақстан Республикасының Ұлттық Банкi белгiлеген қайта қаржыландырудың ресми ставкасы негiзiнде есептеледi. Борышты сот тәртiбiмен өндiрiп алу кезiнде сот несие берушiнiң таңдауы бойынша Қазақстан Республикасы Ұлттық Банкiнiң қуыным жасалған немесе шешiм шығарылған немесе iс жүзiнде төленген күнгi қайта қаржыландырудың ресми ставкасын негiзге ала отырып, несие берушiнiң талабын қанағаттандыра алады. Егер заң құжаттарында немесе шартта айыпақының өзге мөлшерi белгiленбесе, осы ережелер қолданылады.
2. Басқаның ақшасын пайдаланғаны үшiн айыпақы, егер заңдарда немесе шартта айыпақы сомаларын есептеудiң өзге тәртiбi белгiленбесе, бұл ақшаның сомасы несие берушiге төленген күнге дейiн өндiрiлiп алынады.
3. Егер несие берушiнiң ақшасын заңсыз пайдаланудан оған келтiрiлген залал осы баптың 1-тармағының негiзiнде оған тиесiлi айыпақының сомасынан асып
кетсе, ол борышқордан осы сомадан асатын бөлiкте залалды өтеудi талап етуге құқылы.
Ескерту. 353-бап жаңа редакцияда - Қазақстан Республикасының 1997.07.11. № 154, өзгерту енгізілді - 2007.01.12. № 225 Заңдарымен.
354-бап. Жауапкершiлiк және мiндеттеменi заттай орындау
1. Мiндеттеме тиiстi дәрежеде орындалмаған жағдайда айып төлеу және залалдарды өтеу, егер заң құжаттарында немесе шартта өзгеше көзделмесе, борышқорды мiндеттеменi орындаудан босатпайды.
2. Мiндеттеме орындалмаған жағдайда залалды өтеу және оны орындамағаны үшiн айып төлеу, егер заң құжаттарында немесе шартта өзгеше көзделмесе, борышқорды міндеттеменi заттай орындаудан босатады.
3. Мерзiмi өтiп кеткендiктен өзi үшiн ендi керегi болмай қалған мiндеттеменiң орындалуынан несие берушiнiң бас тартуы (осы Кодекстiң 365- бабы), сондай-ақ бас тарту төлемi ретiнде белгiленген ақшалай соманы төлеу ( осы Кодекстiң 369-бабы) борышқорды мiндеттеменi заттай орындаудан босатады .
Ескерту. 354-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . № 211 Заңымен.
355-бап. Белгiлi бiр затты жеке беру мiндеттемесiн орындамаудың салдары
1. Белгiлi бiр затты меншiкке, шаруашылық жүргiзуге, жедел басқаруға немесе несие берушiнiң пайдалануына жеке беру мiндеттемесiн орындамаған жағдайда, бұл затқа үшiншi жақтың артықшылық құқығы болмаса, несие берушi оны борышқордан алып қоюды және несие берушiге берудi талап етуге құқылы.
2. Затты беру борышқорды залалдың орнын толтырудан босатпайды.
356-бап. Мiндеттеменi борышқордың есебiнен орындау
Борышқор затты жасап, несие берушiге беру немесе оған белгiлi бiр жұмыс жасап беру немесе қызмет көрсету мiндеттемесiн орындамаған жағдайда заңдардан, шарттан немесе мiндеттеменiң мәнiнен өзгеше туындамайтындықтан, несие берушi мiндеттеменi орындауды үшiншi адамдарға ақылға қонымды бағаға
ақылға қонымды мерзiмде тапсыруға немесе оны өз күшiмен орындауға және шыққан қажеттi шығындар мен басқа залалдарды өтеудi борышқордан талап етуге құқылы.
357-бап. Субсидиялық жауапкершiлiк
1. Заңдарға немесе мiндеттеменiң шарттарына сәйкес негiзгi борышқор болып табылатын (субсидиялық жауапкершiлiк) басқа адамның жауапкершiлiгiне қосымша жауапты болатын адамға талап қойғанға дейiн кепiл берушi талапты негiзгi борышқорға қоюға тиiс.
Егер негiзгi борышқор несие берушiнiң талабын қанағаттандырудан бас тартса, не оны толық орындамаса немесе несие берушi одан қойылған талапқа ақылға қонымды мерзiмде жауап алмаса, бұл талаптың орындалмаған бөлiгi субсидиялық жауапкершiлiгi бар адамға қойылуы мүмкiн.
2. Егер бұл талап негiзгi борышқорға қарсы қойылған талапқа жатқызу (осы Кодекстiң 370-бабы) арқылы қанағаттандырылуы мүмкiн болса, несие берушi өзiнiң негiзгi борышқорға қоятын талабын субсидиялық жауапкершiлiгi бар адамның қанағаттандыруын талап етуге құқылы емес.
3. Субсидиялық жауапкершiлiгi бар адам оған несие берушi қойған талапты қанағаттандыруға дейiн бұл туралы негiзгi борышқорға ескертуге, ал егер мұндай адамның үстiнен талап арызы түссе, негiзгi борышқорды iске қатыстыруға тиiс.
Олай болмаған жағдайда негiзгi борышқордың несие берушiге қарсы айтайын деген қарсылықтарын субсидиялық жауапкершiлiгi бар адамның регрестiк талабына қарсы қоюға құқығы бар.
Ескерту. 357-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
358-бап. Мiндеттемелер жөнiндегi жауапкершiлiктiң мөлшерiн шектеу
1. Мiндеттеменiң кейбiр түрлерi бойынша және қызметтiң белгiлi бiр түрлерiне байланысты мiндеттемелер бойынша заң құжаттары залалды толық өтеу құқығын шектей алады (шектелген жауапкершiлiк).
2. Егер мiндеттемелердiң осы түрi немесе осындай құқық бұзушылық үшiн жауапкершiлiк мөлшерi заңдармен белгiленген болса, қосылу шарты бойынша немесе тұтынушы ретiндегi азамат несие берушi болып табылатын өзге шарт бойынша борышқордың жауапкершiлiк мөлшерiн шектеу жөнiндегi келiсiм маңызсыз болады.
Ескерту. 358-бапқа өзгерістер енгізілді - ҚР 1998.03.02. N 211; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
359-бап. Мiндеттеменiң бұзылғандығы үшiн жауапкершiлiк негiздерi
1. Борышқор кiнәлi болған кезде, егер заңдарда немесе шартта өзгеше көзделмесе, мiндеттеменi орындамағаны және (немесе) тиiстi дәрежеде орындамағаны үшiн жауап бередi. Егер борышқор мiндеттеменi тиiстi дәрежеде орындау үшiн өзiне байланысты шаралардың барлығын қолданғанын дәлелдесе, ол кiнәсiз деп танылады.
2. Кәсiпкерлiк қызметтi жүзеге асырған кезде мiндеттеменi орындамаған немесе тиiстi дәрежеде орындамаған адам, егер бой бермейтiн күштiң, яғни осы жағдайлар кезiндегi төтенше және тойтаруға болмайтын мән-жайлардың (дүлей құбылыстар, соғыс қимылдары және т.б.) салдарынан тиiстi дәрежеде орындауға мүмкiндiк болмағандығын дәлелдей алмаса, мүлiктiк жауаптылықты көтередi. Ондай мән-жайларға, атап айтқанда, мiндеттеменi орындау үшiн қажеттi тауарлардың, жұмыстардың немесе қызмет көрсетудiң рынокта болмауы жатпайды.
Заңдарда немесе шартта жауапкершiлiктiң және одан босатылудың өзге негiздерi ескерiлуi мүмкiн.
3. Мiндеттеменi әдейі бұзғаны үшiн жауапкершiлiктi жою немесе шектеу туралы алдын ала жасалған шарт маңызсыз болады.
Ескерту. 359-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
360-бап. Мiндеттемедегi кәсiпкерлiк тәуекел
Егер мiндеттемеде кәсiпкердiң тапсырысы бойынша әлдебiр жұмысты орындау көзделсе, жұмыстың нәтижесiн пайдаланудың мүмкiн еместiгi немесе оны пайдаланудың тиiмсiз болу тәуекелi кәсiпкерге жүктеледi. Жұмысты тиiстi дәрежеде орындаған адам, егер шартта өзге кәсiпкерлiк тәуекелдi бөлу көзделмесе, орындау дәрежесiне сәйкес ақы алуға құқылы.
361-бап. Екiжақты шартты орындамаудың салдары
Егер екiжақты шартта тараптардың бiрде-бiрi жауап бермейтiн мән-жайдың салдарынан тараптардың бiреуi үшiн мiндеттеменi орындауға мүмкiншiлiк болмаса, заң құжатында немесе шартта өзгеше көзделмегендiктен, шарттың орындалуын тараптардың ешқайсысының да талап етуге құқығы жоқ. Мұндай жағдайда тараптардың әрқайсысы өзi орындағанның бәрiн қайтаруды тиiстi қарсы орындауды алмай-ақ талап етуге құқылы.
362-бап. Борышқордың өз қызметкерлерi үшiн жауапкершiлiгi
Борышқордың мiндеттемесiн орындау жөнiндегi лауазымды адамдарының немесе өзге қызметкерлерiнiң әрекеттерi борышқордың әрекеттерi болып есептеледi. Борышқор бұл әрекеттер үшiн, егер олар мiндеттеменi орындамауға немесе тиiстi дәрежеде орындамауға әкелiп соқтырса, жауап бередi.
363-бап. Борышқордың үшiншi жақтардың әрекеттерi үшiн жауапкершiлiгi
1. Үшiншi жақтардың борышқор алдындағы өз мiндеттерiне қатысты әрекетi не әрекетсiздiгi мiндеттеменi бұзудың себебi болғанда да борышқор несие берушiнiң алдында жауап бередi.
Егер заңдарда тiкелей орындаушы жауап бередi деп белгiленбесе, борышқор несие берушi алдындағы өз мiндетiн жүктеген үшiншi жақтардың әрекетi немесе әрекетсiздiгi үшiн де жауап бередi.
2. Борышқор үшiншi жақтардың әрекеттерiнен немесе әрекетсiздiгiнен мiндеттеменi бұзғаны үшiн жауапкершiлiктен олардың кiнәсiздiгi дәлелденгеннен кейiн босатылуы мүмкiн.
Кәсiпкерлiк қызметтi жүзеге асырған кезде борышқор үшiншi жақтардың әрекеттерiнен немесе әрекетсiздiгiнен мiндеттеменi бұзғаны үшiн жауапкершiлiктен, егер оған дүлей күштер себепшi болса, босатылады (осы Кодекстiң 359-бабының 2-тармағы).
3. Үшiншi жақтардың құқықтарымен мiндеттеме нысанасын ауырлатуға байланысты мiндеттеме бұзылғанда, егер ондай ауырлату несие берушiмен шарт жасасқанға дейiн пайда болса және несие берушiге ол туралы шарт жасасу кезiнде ескертiлсе ғана, борышқор жауапкершiлiктен босатылады.
4. Заңдарда немесе шартта үшiншi жақтардың әрекеттерi үшiн борышқор жауапкершiлiгiнiң өзге жағдайлары көзделуi мүмкiн.
364-бап Несие берушiнiң кiнәсi
1. Егер мiндеттеменiң орындалмауы немесе тиiстi дәрежеде орындалмауы екi тараптың да кiнәсiнен болса, сот оған сәйкес борышқор жауапкершiлiгiнiң көлемiн азайтады. Сот, егер несие берушi мiндеттеменiң орындалмауынан немесе тиiстi дәрежеде орындалмауынан келтiрiлген залал көлемiнiң ұлғаюына қасақана немесе абайсызда себепкер болса немесе олардың азаюына ақылға қонымды шаралар қолданбаса, борышқор жауапкершiлiгiнiң мөлшерiн де азайтады.
2. Борышқор заң актiлерi немесе шарт бойынша өзiнiң кiнәсiне қарамастан мiндеттеменiң орындалмағанына немесе тиiстi дәрежеде орындалмағанына
жауап беретiн жағдайларда да осы баптың 1-тармағының ережелерi тиiсiнше қолданылады.
Ескерту. 364-бапқа өзгерту енгізілді - Қазақстан Республикасының 1998.03.02 . N 211 Заңымен.
365-бап. Борышқордың мерзiмдi өткiзiп алуы
1. Мiндеттеменiң орындалу мерзiмiн өткiзiп алған борышқор несие берушiнiң алдында мерзiмдi өткiзiп алу арқылы келтiрiлген залал үшiн және мерзiмiн өткiзiп алу кезiнде туындаған кездейсоқтықтан орындай алмауының салдары үшiн жауап бередi.
2. Егер борышқордың мерзiмдi өткiзiп алуы салдарынан мiндеттеменi орындау несие берушiге керексiз болып қалса, ол мiндеттеменi орындауды қабылдаудан бас тартып, залалды өтеудi талап ете алады.
3. Несие берушiнiң мерзiмдi өткiзiп алуы себептi мiндеттеме әзiрше орындала алмайтын болса, борышқор мерзiмдi өткiзiп алушы болып саналмайды (осы Кодекстiң 366-бабы).
366-бап. Несие берушiнiң мерзiмдi өткiзiп алуы
1. Егер несие берушi борышқор ұсынған тиiстi дәрежедегi орындауды қабылдаудан бас тартса, немесе заңдарда немесе шартта көзделген, не iскерлiк айналым дәстүрлерiнен немесе аяқталғанға дейiн борышқор өз мiндетiн атқара алмаған мiндеттiң мәнiнен туындайтын әрекеттердi жасамаған болса, ол мерзiмдi өткiзiп алған болып есептеледi.
Борышқордың мiндеттеменi орындағанын тиiстi түрде растаудан бас тартқан жағдайда да несие берушi мерзiмдi өткiзiп алған болып есептеледi.
2. Егер несие берушi мерзiмдi өткiзiп алу, не өзi, не заңдар бойынша немесе несие берушiнiң тапсыруымен мiндеттеменiң орындалуын қабылдап алу жүктелген адамдар жауап бермейтiн жағдайларға байланысты болғанын дәлелдеп бермесе, несие берушiнiң мерзiмдi өткiзiп алуы борышқорға мерзiмдi өткiзiп алудан келтiрiлген залалдың орнын толтыруға құқық бередi.
Мерзiмдi өткiзiп алған несие берушiге мерзiмдi өткiзiп алған кезде мiндеттеменi орындаудың кездейсоқ мүмкiн болмай қалуының барлық қолайсыз салдары жүктеледi.
3. Ақшалай мiндеттеме бойынша борышқор несие берушiнiң мерзiмдi өткiзiп алғаннан кейiнгi уақытына сыйақы (мүдде) төлеуге мiндеттi емес.
Ескерту. 366-бапқа өзгерту енгізілді - ҚР 1997.07.11 N 154 Заңымен.
21-тарау. Міндеттемені тоқтату
367-бап. Мiндеттеменi тоқтату негiздерi
1. Мiндеттеме орындалса, талаптан бас тарту төлемi төленсе, борышты есепке жатқызылса, жаңғыртылса, борышты кешiру арқылы борышқор мен несие берушi бiр тұлға болса, орындауға мүмкiндiк болмаса, мемлекеттiк органның құжаты шығарылса, азамат қайтыс болса, заңды тұлға таратылса, толық немесе iшiнара тоқтатылады.
2. Мiндеттеменi тараптардың бiреуiнiң талабы бойынша тек заңдарда көзделген жағдайларда ғана тоқтатуға жол берiледi.
3. Заңдар мен шартта мiндеттеменi тоқтатудың басқа да негiздерi көзделуi мүмкiн.
368-бап. Мiндеттеменi орындау арқылы тоқтату
1. Мiндеттеме тиiстi дәрежеде орындалғанда тоқтатылады. 2. Алынып тасталды - ҚР 1998.03.02 N 211 Заңымен. Ескерту. 368-бапқа өзгерту енгізілді - ҚР 1998.03.02 N 211 Заңымен.
369-бап. Бас тарту төлемi
Тараптардың келiсiмi бойынша мiндеттеме орындалудың орнына бас тарту төлемiн беру (ақша төлеу, мүлiк беру және т.б.) арқылы тоқтатылуы мүмкiн. Бас тарту төлемiнiң мөлшерiн, мерзiмдерiн және тәртiбiн тараптар белгiлейдi.
370-бап. Мiндеттеменi есепке жатқызу арқылы тоқтату
1. Мiндеттеме мерзiмi жеткен, не мерзiмi көрсетiлмеген немесе мерзiмi талап ету кезiмен белгiленген бiртектес қарсы талапты есепке жатқызу арқылы толық немесе бөлiк-бөлiгiмен тоқтатылады. Есепке жатқызуға бiр тараптың өтiнiшi жеткiлiктi.
2. Мына талаптарды: 1) егер тараптардың бiрiнiң өтiнiшi бойынша талапқа заңды талап мерзiмiн
қолдануға болса және ол мерзiм өтiп кетсе; 2) азаматтың өмірi мен денсаулығына келтiрiлген зиянды өтеу туралы; 3) алимент өндiрiп алу туралы; 4) өмiр бойы асырау туралы;
4-1) егер кредитордың талабы талап ету құқығын басқаға беру шартынан ( шарттарынан) туындайтын болса, лицензиядан айрылған не консервациялау немесе тарату процесінде тұрған банкке қойылатын талаптарды;
5) заңдарда немесе шартта көзделген басқа да жағдайларды есепке жатқызуға жол берiлмейдi.
3. Талап өзгеге өткен жағдайда борышқор жаңа несие берушiнiң талабына қарсы өзiнiң бастапқы несие берушiге керi талабын есепке жатқызуға құқылы.
Егер талап борышқор талап етудi беру туралы хабарды алған кездегi негiзден туындаса және талап мерзiмi оны алғанға дейiн туса, не ол мерзiм көрсетiлмесе немесе талап ету кезiмен белгiленсе, ол есепке жатқызылады.
Ескерту. 370-бапқа өзгерту енгізілді - ҚР 1998.03.02 N 211, 2005.12.23 N 107 ( қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2011.02.10 N 406-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
371-бап. Мiндеттеменiң борышқор мен несие берушінiң бiр тұлға болуы себептi тоқтатылуы
Мiндеттеме борышқор мен несие берушi бiр тұлға болуы себептi тоқтатылады.
372-бап. Мiндеттеменiң жаңғыртылуға байланысты тоқтатылуы
1. Мiндеттеме тараптардың арасында болған бастапқы мiндеттеменi ауыстыру туралы келiсiммен сол адамдардың арасындағы орындаудың өзге нысанасын немесе әдiсiн көздейтiн басқа мiндеттемемен (жаңғыртылуға байланысты) тоқтатылады.
2. Азаматтың өмiрiне немесе денсаулығына келтiрiлген зиянды өтеу жөнiндегi және алимент төлеу жөнiндегi мiндеттемелерге қатысты жаңғыртылуға жол берiлмейдi.
3. Жаңғыртылу, егер тараптардың келiсiмiнде өзгеше көзделмесе, бастапқы мiндеттемеге байланысты қосымша мiндеттемелердi тоқтатады.
373-бап. Борышты кешiру
Несие берушi борышқорды мойнына алған мiндеттерiнен босатқанда, егер бұл несие берушiнiң мүлкiне қатысты басқа адамдардың құқықтарын бұзбайтын болса, мiндеттеме тоқтатылады.
374-бап. Орындауға мүмкiндiк болмағандықтан мiндеттеменiң тоқтатылуы
1. Егер мүмкiндiктiң болмауы борышқор жауап бермейтiн жағдайлардан туындаса, орындауға мүмкiндiк болмағандықтан мiндеттеме тоқтатылады. Бұл ереженiң күшi ақшалай мiндеттемелерге қолданылмайды.
2. Тараптың өзi де, екiншi тарап та мiндеттеменi орындауға жауап бермейтiн мән-жайдан тарап мiндеттеменi орындай алмайтын ретте, егер заңда немесе шартта өзгеше көзделмесе, бiр тараптың екiншi тараптан мiндеттеменi орындауды талап етуге құқығы жоқ. Бұл орайда мiндеттеменi орындаған әрбiр тарап орындалғанды қайтаруды талап етуге құқылы.
3. Борышқор несие берушiнiң әрекеттерi кiнәсiнен мiндеттеменi орындауға мүмкiндiк болмаған жағдайда несие берушiнiң одан мiндеттеме бойынша атқарғанын қайтаруды талап етуге құқығы жоқ.
375-бап. Мемлекеттiк органның құжаты негiзiнде мiндеттеменiң тоқтатылуы
1. Егер жергiлiктi өкiлдi және атқарушы органдарды қоса алғанда, мемлекеттiк органдардың құжат (жария құжат) шығаруы салдарынан мiндеттеменi толық немесе iшiнара орындау мүмкiн болмаса, мiндеттеме толық немесе тиiстi бөлiгiнде тоқтатылады. Осының салдарынан залал шеккен тараптар осы Кодекске сәйкес олардың орнын толтыруды талап етуге құқылы.
2. Мiндеттеменiң тоқтатылуына негiз болған жария құжат белгiленген тәртiп бойынша жарамсыз деп танылған жағдайда, егер тараптардың келiсiмiнен немесе мiндеттеменiң мәнiнен өзгеше жағдай туындамайтын болса және мiндеттеменiң орындалуына несие берушiнiң мүдделiгi жоғалмаса, мiндеттеме қайтадан қалпына келтiрiледi.
376-бап. Азаматтың қайтыс болуымен мiндеттеменiң тоқтатылуы
1. Егер мiндеттеменi орындау борышқордың жеке өзiнiң қатысуынсыз жүргiзiлмейтiн болса не мiндеттеме басқаша түрде борышқордың жеке басымен ажырамастай байланысты болса, борышқордың қайтыс болуымен мiндеттеме тоқтатылады.
2. Егер мiндеттеменi орындау несие берушiнiң жеке өзiне арналса, не мiндеттеме басқаша түрде борышқордың жеке басымен ажырамастай байланысты болса, несие берушiнiң қайтыс болуымен мiндеттеме тоқтатылады.
377-бап. Заңды тұлғаның таратылуымен мiндеттеменiң тоқтатылуы
1. Таратылған заңды тұлғаның мiндеттемесiн орындау заңдармен басқа заңды тұлғаға (азаматтың өмiрi мен денсаулығына зиян келуi салдарынан туындаған мiндеттемелер бойынша) жүктелген жағдайлардан басқа реттерде, мiндеттеме заңды тұлға (борышқор немесе несие берушi) таратылғанда тоқтатылады.
2. Жергiлiктi өкiлдi және атқарушы органдарды қоса алғанда, мемлекеттiк органдардың қызметiн тоқтату немесе оларды қайта құру осы органдар орындамаған мiндеттемелердi тоқтатуға әкелiп соқтырмайды. Егер тиiстi органдардың қызметiн тоқтату немесе оларды қайта құру туралы шешiмде міндеттемені орындау жүктелетін өзге мемлекеттік орган айқындалмаған болса, көрсетiлген мiндеттемелердi орындау қарамағында бюджет қаражаты бар органға жүктеледi.
Ескерту. 377-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
2-бөлiмше. Шарт туралы жалпы ережелер 22-тарау. Шарт ұғымы және оның ережелері
378-бап. Шарт ұғымы
1. Екi немесе одан көп адамның азаматтық құқықтар мен мiндеттердi белгiлеу , өзгерту немесе тоқтату туралы келiсiмi шарт деп танылады.
2. Шартқа осы Кодекстiң 4-тарауында көзделген екiжақты және көпжақты мәмiлелер туралы ережелер қолданылады.
3. Екiден көп тараптармен жасалатын шарттарға (көпжақты шарттар), егер бұл осындай шарттардың көпжақтылық сипатына қайшы келмесе, шарт туралы жалпы ережелер қолданылады.
379-бап. Шарттан туындайтын құқықтық қатынастар
1. Шарттан мiндеттемелiк, заттық, авторлық немесе өзге құқықтық қатынастар туындауы мүмкiн.
2. Шарттан туындаған мiндеттемелерге, осы тараудың ережелерiнде және осы Кодексте аталған шарттардың кейбiр түрлерi туралы ережелерiнде өзгеше көзделмегендiктен, мiндеттемелер жөнiндегi жалпы ережелер қолданылады (осы Кодекстiң -268 377-баптары).
3. Шарттан (бiрлескен қызмет туралы шарт, құрылтай шарты, авторлық шарт және басқалар) туындайтын заттық, авторлық немесе өзге де құқықтық қатынастарға, егер заңдардан, шарттан немесе құқықтық қатынастардың мәнiнен өзгеше туындамаса, осы тараудың ережелерi қолданылады.
380-бап. Шарт еркiндiгi
1. Азаматтар және заңды тұлғалар шарт жасасуға ерiктi. Осы Кодексте, заң құжаттарында немесе өз еркiмен қабылдаған мiндеттемеде шарт жасасу мiндетi көзделген жағдайларды қоспағанда, шарт жасасуға мәжбүр етуге жол берiлмейдi.
2. Тараптар заңдарда көзделген шартты да, көзделмеген шартты да жасаса алады.
381-бап. Аралас шарт
Тараптар заңдарда көзделген түрлi шарттардың элементтерi бар шарт жасаса алады (аралас шарт). Тараптардың аралас шарт бойынша қатынастарына, егер тараптардың келiсiмiнен немесе аралас шарттың мәнiнен өзгеше туындамаса, аралас шартта элементтерi бар шарттар туралы заңдардың тиiстi бөлiктерi қолданылады.
382-бап. Шарт жағдайларын анықтау
1. Тиiстi шарттың мазмұны, заңдармен жазылған жағдайлардан басқасында, шарт ережелерi тараптардың өз қалауы бойынша белгiленедi.
Шарттың ережесi заңдарға сәйкес қолданылатын қалыппен көзделген реттерде, егер тараптардың келiсiмiмен өзгеше (диспозитивтiк қалып) белгiленбесе, тараптар өздерiнiң келiсiмдерiмен қалыптың қолданылуын жоя алады немесе сол қалыпта көзделгеннен өзгеше жағдайды белгiлей алады.
2. Егер шарттың ережесiн тараптар немесе диспозитивтiк қалып белгiлемеген болса, тиiстi жағдайлар тараптардың қатынастарында қолданылатын iскерлiк қызмет өрiсiндегi әдеттегi құқықтармен белгiленедi.
383-бап. Шарт және заңдар
1. Шарт тараптар үшiн оны жасасу кезiнде қолданылып жүрген заңдармен белгiленген мiндеттi ережелерге (императивтiк қалыптарға) сәйкес келуге тиiс.
2. Егер шарт жасалғаннан кейiн шарт жасалған кезде қолданылып жүрген ережелерден өзгеше, тараптар үшiн мiндеттi ережелер заңдармен белгiленген болса, жасалған шарттың ережелерi оның күнi бұрын жасалған шарттардан туындайтын қатынастарға да қолданылады деп заңдармен белгiлегендегiден басқа жағдайларда, өз күшiн сақтайды.
384-бап. Ақылы және ақысыз шарт
1. Шарт бойынша тарап өз мiндеттемелерiн орындағаны үшiн ақы алуы немесе бiр-бiрiне бiр нәрсе беруi керек болса, бұл ақылы шарт болып табылады.
2. Бiр тарап екiншi тарапқа одан ақы алмай немесе ешнәрсе бермей бiр нәрсенi ұсынуды мiндетiне алған шарт ақысыз шарт болып табылады.
3. Егер заңдардан, шарттың мазмұнынан немесе мәнiнен өзгеше туындамаса, шарт ақылы болуы мүмкiн.
385-бап. Баға
1. Шарттың орындалуы тараптардың келiсiмiмен белгiленген баға бойынша төленедi.
Заң құжаттарында көзделген жағдайларда оған уәкiлдiк берiлген мемлекеттiк органдар белгiлейтiн немесе реттейтiн баға (тарифтер, бағалар, ставкалар және т.б.) қолданылады.
2. Шарт жасалғаннан кейiн бағаны өзгертуге шартта, заң құжаттарында көзделген реттер мен жағдайларда немесе заң құжаттарында белгiленген тәртiп бойынша жол берiледi.
3. Ақылы шартта баға көзделмеген және шарт ережелерiн негiзге ала отырып оны анықтау мүмкiн болмаған реттерде шартты орындау шарт жасасу кезiнде осыған ұқсас жағдайларда әдетте осы сияқты тауарлар, жұмыс немесе қызмет үшiн алынатын баға бойынша жүргiзiлуге тиiс деп есептеледi.
386-бап. Шарттың қолданылуы
1. Шарт оны жасасқан кезден бастап күшiне енедi және тараптар үшiн мiндеттi болып табылады (осы Кодекстiң 393-бабы).
2. Тараптар өздерi жасасқан шарттың ережелерi олардың шартты жасасуға дейiн пайда болған қатынастарына қолданылатындығын белгiлеуге құқылы.
3. Егер заңдарда немесе шартта шарттың қолданылу мерзiмi көзделсе, осы мерзiмнiң аяқталуы, шарт бойынша тараптар мiндеттемелерiнiң тоқтатылуына әкелiп соқтырады.
Қолданылу мерзiмi көрсетiлмеген шарт тараптардың онда белгiленген мiндеттемелердi орындауы аяқталып бiткен кезге дейiн қолданылады деп танылады.
4. Шарттың қолданылу мерзiмiнiң аяқталуы тараптарды осы мерзiм бiткенге дейiн орын алып келген шартты бұзғандық үшiн жауапкершiлiктен босатпайды.
387-бап. Жария шарт
1. Кәсіпкерлік қызметті жүзеге асыратын тұлғамен жасалған және мұндай тұлға өз қызметiнiң сипатына қарай оған жүгінетін әркiмге қатысты жүзеге асырылуға тиіс тауарларды сату, жұмыстарды орындау немесе қызметтер көрсету (бөлшек сауда, көпшiлiк пайдаланатын көлiкпен тасымалдау, байланыс қызметi, энергиямен жабдықтау, медицина, қонақүй қызметiн көрсету және т.б.) жөнiндегi оның мiндеттемелерiн белгiлейтiн шарт жария шарт деп танылады.
Кәсіпкерлік қызметті жүзеге асыратын тұлғаның, Қазақстан Республикасының заңнамалық актілерінде көзделген жағдайлардан басқа, жария шарт жасасуға қатысты бір тұлғаға басқалардың алдында артықшылық көрсетуге құқығы жоқ.
2. Тұтынушылардың кейбiр категорияларына жеңiлдiк беру заңдармен жол берiлетiн жағдайларды қоспағанда, тауарлардың, жұмыс пен қызметтiң бағасы, сондай-ақ жария шарттың өзге ережелерi тұтынушылардың бәрiне бiрдей болып белгiленедi.
3. Тұтынушыға тиiстi тауарлар (жұмыстар, көрсетілетін қызметтер) ұсыну мүмкiндігі бола тұра кәсіпкерлік қызметті жүзеге асыратын тұлғаның жария шарт жасасудан бас тартуына жол берiлмейдi.
Кәсіпкерлік қызметті жүзеге асыратын тұлға жария шарт жасасудан негiзсiз жалтарған кезде осы Кодекстiң 399-бабының 4-тармағында көзделген ережелер қолданылады.
4. Заң құжаттарында көзделген жағдайларда Қазақстан Республикасының Үкiметi жария шарттарды жасау және орындау кезiнде тараптар үшiн мiндеттi ережелер (үлгi шарттар, ережелер және т.б.) шығаруы мүмкiн.
5. Жария шарттың осы баптың 2 және 4-тармақтарында белгiленген талаптарына сәйкес келмейтiн ережелерi маңызсыз болып табылады.
Ескерту. 387-бапқа өзгерістер енгізілді - ҚР 1997.07.11 N 154 Заңымен; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
388-бап. Шарттардың үлгi ережелерi
1. Шартта оның кейбiр ережелерi осындай шарттар үшiн әзiрленген және баспада басылып шыққан үлгi ережелермен белгiленетiнi көзделуi мүмкiн.
2. Шарттың мазмұнында үлгi ережелерге сiлтеме болмаған жағдайларда, осындай үлгi ережелер, егер олар осы Кодекстiң 3 және 382-баптарымен белгiленген талаптарға сай келетiн болса, тараптардың қатынастарына iскерлiк қызмет өрiсiндегi әдеттегi құқықтар ретiнде қолданылады.
3. Үлгi ережелер үлгi шарт немесе мазмұнында осы ережелер бар өзге құжат нысанында жазылуы мүмкiн.
389-бап. Қосылу шарты
1. Ережелерiн тараптардың бiреуi формулярларда немесе өзге стандартты нысандарда белгiлеген және басқа тарап оны ұсынылған шартқа тұтастай қосылу жолы деп қабылдай алатын шарт қосылу шарты деп танылады.
1-1. Қазақстан Республикасының зейнетақымен қамсыздандыру туралы заңнамалық актісінде қосылу шартын жасасу ерекшеліктері және оның мазмұнына қойылатын талаптар көзделуі мүмкін.
2. Егер қосылу шарты заңдарға қайшы келмегенiмен, бұл тарапты осындай шарттар бойынша берiлетiн құқықтардан айыратын болса немесе мiндеттеменi бұзғаны үшiн басқа тараптың жауапкершiлiгiн жоятын немесе шектейтiн болса не қосылған тарап үшiн онда анық қиындық келтiретiн, шарттың талаптарын белгiлеуге қатысатын мүмкiндiгi болып тұрғанда өзiнiң ақылға қонымды түсiнiлетiн мүдделерiн негiзге ала отырып қабылдамай-ақ қоятын талаптары болса, шартқа қосылған тарап шартты бұзуды талап етуге құқылы.
3. Осы баптың 2-тармағында көзделген мән-жайлар болған кезде, өзiнiң кәсiпкерлiк қызметiн жүзеге асыруына байланысты шартқа қосылған тараптың шартты бұзу туралы қойған талабы, егер қосылған тарап шарттың қандай жағдайларда жасалғанын бiлсе немесе бiлуге тиiс болса, қанағаттандырылуға жатпайды.
Ескерту. 389-бапқа өзгеріс енгізілді - ҚР 21.06.2013 N 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
390-бап. Алдын ала жасалатын шарт
1. Алдын ала жасалатын шарт бойынша тараптар алдын ала жасалатын шартта көзделген жағдайларда мүлiк беру, жұмыс орындау немесе қызмет көрсету туралы болашақта шарт (негiзгi шарт) жасасуға мiндеттенедi.
2. Алдын ала шарт негiзгi шарт үшiн заңнамада белгiленген нысанда, ал егер негiзгi шарт нысаны белгiленбесе, онда жазбаша нысанда жасалады. Алдын ала шарт нысаны туралы қағидаларды сақтамау оның маңызсыздығына алып келеді.
3. Алдын ала жасалатын шартта негiзгi шарттың мәнiн, сондай-ақ басқа да елеулi жағдайларын белгiлеуге мүмкiндiк беретiн ережелер болуға тиiс.
4. Алдын ала жасалатын шартта тараптар негiзгi шартты жасасуға мiндеттенетiн мерзiм көрсетiледi.
Егер алдын ала жасалатын шартта мұндай мерзiм белгiленбесе, олар көздеген шарт алдын ала жасалған кезден бастап бiр жыл iшiнде жасалуға тиiс.
5. Алдын ала шарт жасасқан тарап өзi көздеген шартты жасасудан жалтарған реттерде, егер заңдарда немесе шартта өзгеше көзделмесе, осы арқылы келтiрiлген залалды екiншi тарапқа өтеуге мiндеттi.
6. Алдын ала жасалатын шартта көзделген мiндеттемелер, егер тараптар негiзгi шартты жасасуға тиiс мерзiм бiткенге дейiн ол жасалмаса не тараптардың бiрi екiншi тарапқа бұл шартты жасасуға ұсыныс жiбермесе, тоқтатылады.
7. Егер ниеттер туралы хаттамада (ниеттер туралы шартта) тараптардың оған алдын ала жасалатын шарт күшiн беру ниеттерi тiкелей көзделмесе, ол азаматтық-құқықтық шарт болып табылмайды және оның орындалмауы заңдық зардаптарға әкелiп соқтырмайды.
Ескерту. 390-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
391-бап. Үшiншi жақтың пайдасына жасалатын шарт
1. Тараптар несие берушiге емес, шартта көрсетiлген немесе көрсетiлмеген және борышқордан мiндеттеменi өзiнiң пайдасына орындауды талап етуге құқығы бар үшiншi жаққа борышқор орындап беруге мiндеттi деп көрсеткен шарт үшiншi жақтың пайдасына жасалған шарт болып танылады.
2. Егер заңдарда немесе шартта өзгеше көзделмесе, үшiншi жақ борышқорға шарт бойынша өз құқығын пайдалану ниетiн бiлдiрген кезден бастап тараптар өздерi жасасқан шартты үшiншi жақтың келiсiмiнсiз бұза алмайды немесе өзгерте алмайды.
3. Борышқор шартта өзiнiң несие берушiге қарсы қоя алатындай қарсылықтарын үшiншi жақтың талаптарына қарсы қоюға құқылы.
4. Үшiншi жақ шарт бойынша өзiне берiлген құқықтан бас тартқан ретте несие берушi, егер заңдарға және шартқа қайшы келмесе, бұл құқықты пайдалана алады.
5. Үшінші тұлға шарт бойынша өз құқығын пайдалану ниетін білдірген кезден бастап және үшінші тұлға өз құқығынан бас тартқан кезге дейін кредитор шарт талаптарына сәйкес борышкерден үшінші тұлғаның пайдасына міндеттемелерді орындауды ғана талап етуге құқылы.
Ескерту. 391-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
392-бап. Шартты түсiндiру
1. Сот шарт ережелерiн түсiндiрген кезде ондағы сөздер мен сөйлемдердiң сөзбе-сөз мәнi ескерiледi. Шарт ережесiнiң сөзбе-сөз мәнi түсiнiксiз болған ретте ол бүкiл шарттың басқа ережелерiмен және мағынасымен салыстыру арқылы анықталады.
2. Егер осы баптың бiрiншi тармағындағы ережелермен шарт мазмұнын анықтау мүмкiн болмаса, шарт мақсатын ескере отырып тараптардың шын мәнiндегi ортақ еркi анықталуға тиiс. Бұл орайда шарт жасасу алдындағы келiссөздер мен хат жазысуды, тараптардың өзара қатынастарында орныққан тәжiрибенi, iскерлiк қызмет өрiсiндегi әдеттегi құқықтарды, талаптардың бұдан кейiнгi мiнез-құлқын қоса алғанда, тиiстi мән-жайлардың бәрi ескерiледi.
23-тарау. Шарт жасасу
393-бап. Шарттың елеулi ережелерi
1. Тараптар арасында шарттың барлық елеулi ережелерi бойынша тиiстi жағдайларда талап етiлетiн нысанда келiсiмге қол жеткен кезде шарт жасалды деп есептеледi.
Шарттың мәнi туралы ережелер, заңдарда елеулi деп танылған немесе шарттардың осы түрi үшiн қажеттi ережелер, сондай-ақ бiр тараптың мәлiмдеуi бойынша келiсiмге қол жеткiзуге тиiстi барлық ережелер елеулi ережелер болып табылады.
2. Егер шарт жасасу үшiн заң құжаттарына сәйкес мүлiктi беру қажет болса, шарт тиiстi мүлiк берiлген кезден бастап жасалды деп есептеледi.
394-бап. Шарттың нысаны
1. Егер тараптар белгiлi бiр нысанда шарт жасасуға уағдаласса, заң бойынша шарттардың осы түрi үшiн бұл нысан талап етiлмесе де, шарт оған уағдаласқан нысан берiлген кезден бастап жасалды деп есептеледi.
2. Егер шарт жасасу жөнiндегi жазбаша ұсыныс осы Кодекстiң 396-бабының 3-тармағында көзделген тәртiп бойынша қабылданса, шарттың жазбаша нысаны сақталған деп есептеледi.
395-бап. Оферта
1. Шарт жасасу туралы бiр немесе бiрнеше нақты жақтарға жасалған ұсыныс, егер ол жеткiлiктi дәрежеде айқын болып, ұсыныс жасаған жақтың ол қабылданған жағдайда (акцепт) өзiн сонымен байланысты деп есептеу жөнiндегi ниетiн көрсетсе, оферта деп танылады. Егер ұсыныста шарттың елеулi ережелерi
немесе оларды анықтау тәртiбi көрсетiлсе, ол жеткiлiктi дәрежеде айқын деп табылады.
2. Оферта оны жiберген жақ ол алушының қолына тигеннен бастап байланысты етiп қояды.
Егер офертаны қайтарып алу туралы хабар офертаның өзiнен бұрын немесе онымен қатар келсе, оферта алынбаған болып есептеледi.
3. Егер офертаның өзiнде өзгеше айтылмаса не ұсыныстың мәнiнен немесе ол жасалған жағдайдан туындамаса, алушының қолына тиген офертаны оның акцептi үшiн белгiленген мерзiм iшiнде қайтарып алуға болмайды.
4. Жарнама және беймәлiм адамдар тобына жiберiлген өзге де ұсыныстар, егер ұсыныста тiкелей өзгеше көрсетiлмесе, оферта жасасуға шақыру ретiнде қаралады.
5. Ұсыныс жасаушы жақтың кез келген хабарлаушысымен ұсыныста көрсетiлген жағдайларда шарт жасасу еркi көрiнетiн, шарттың барлық елеулi ережелерi бар ұсыныс оферта (жария оферта) деп танылады.
396-бап. Акцепт
1. Оферта жолданған жақтың оны қабылдағаны туралы жауабы акцепт деп танылады.
Акцепт толық әрi бұлтарыссыз болуға тиiс. 2. Егер заң құжатынан, iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан
немесе тараптардың бұрынғы iскерлiк қатынастарынан өзгеше туындамаса, жауап қайтармау акцепт болып табылмайды.
3. Офертаны алған жақтың оның акцептi үшiн белгiленген мерзiмде онда көрсетiлген шарт ережелерiн орындау жөнiнде жасаған әрекеттерi (тауарлар тиеп жөнелту, қызмет көрсету, жұмыс орындау, тиiстi соманы төлеу және т.б.), егер заңдарда өзгеше көзделмесе немесе офертада көрсетiлмесе, акцепт деп есептеледi .
4. Егер акцептi қайтарып алу туралы хабар оферта жiберген жаққа акцептiң өзiнен бұрын немесе онымен қатар келсе, акцепт алынбаған болып есептеледi.
397-бап. Шарт жасасу тәртiбi
1. Офертада акцептiге арналған мерзiм көрсетiлген жағдайда, егер оферта жiберген жақ акцептi онда көрсетiлген мерзiм iшiнде алса, шарт жасалған болып есептеледi.
2. Жазбаша не электрондық офертада акцептiге арналған мерзiм қамтылмаған кезде, егер оферта жiберген тұлға акцептiні – заңнамада белгiленген мерзiм
аяқталғанға дейiн, ал егер ондай мерзiм белгiленбесе, оны ол үшін қажеттi қалыпты уақыт iшiнде алса, шарт жасалған болып есептеледi.
Оферта акцептiге арналған мерзiм көрсетiлмей ауызша жасалған жағдайда, егер екiншi тарап оның акцептi туралы дереу мәлiмдесе, шарт жасалған болып есептеледi.
3. Егер оферта жiберген тарап екiншi тарапқа акцептi кеш алғаны туралы дереу хабарламаса, акцепт туралы мерзiмiнде жiберiлген хабар кешiктiрiлiп алынған жағдайда, акцепт кешiктiрiлген болып есептелмейдi.
Егер оферта жiберген тарап екiншi тарапқа оның кешiктiрiлiп алынған акцептi қабылданғаны туралы дереу хабарласа, шарт жасалған болып есептеледi.
4. Офертада ұсынылғаннан өзге жағдайларда шарт жасасуға келiскендiк туралы жауап акцепт болып табылмайды.
Мұндай жауап офертадан бас тарту және сонымен бiрге жаңа оферта деп танылады.
Ескерту. 397-бапқа өзгеріс енгізілді - ҚР 24.11.2015 № 419-V Заңымен ( 01.01.2016 бастап қолданысқа енгізіледі).
398-бап. Шарт жасасатын жер
Егер шартта оны жасасатын жер көрсетiлмесе, шарт азаматтың тұрғылықты жерiнде немесе оферта жiберген заңды тұлғаның орналасқан жерiнде жасалған болып танылады.
399-бап. Шартты мiндеттi түрде жасасу
1. Осы Кодекске немесе өзге заң құжаттарына сәйкес шарт жасасу тараптардың бiрi үшiн мiндеттi болған реттерде, бұл тарап екiншi тарапқа акцепт туралы, не акцепттен бас тартатыны туралы немесе офертаға (шарт жобасына) өзгеше жағдайларға акцепт жасалатыны туралы (шарт жобасына келiспеушiлiк хаттамасы), егер заңдарда өзге мерзiм белгiленбесе, не тараптар келiспеген болса , офертаны алған күннен бастап отыз күннiң iшiнде хабар жiберуi тиiс.
2. Офертаны жiберген және шартты жасасуға мiндеттi тараптан оған өзге жағдайлармен акцепт жасау туралы хабар (шарт жобасына келiспеушiлiк хаттамасын) алған тарап шарт жасасу кезiнде пайда болған келiспеушiлiктi осындай хабар алған күннен бастап отыз күн iшiнде, не акцептiге арналған мерзiм өткен соң, егер заңдарда шарттардың жекелеген түрлерi туралы өзге мерзiм белгiленбесе, соттың қарауына беруге құқылы.
3. Егер шарт жасасуға мiндеттi тарап жiберген шарт жобасына отыз күн мерзiмде шарт жобасына келiспеушiлiк хаттамасы алынса, бұл тарап екiншi
тарапқа шартты сол редакциясында қабылдайтыны туралы, не келiспеушiлiк хаттамасын қабылдамайтыны туралы келiспеушiлiк хаттамасын алған күннен бастап отыз күн iшiнде хабарлауға мiндеттi.
Келiспеушiлiк хаттамасын қабылдамаған не оны көрсетiлген мерзiмде қарау нәтижелерi туралы хабарды алмаған жағдайда келiспеушiлiк хаттамасын жiберген тарап, егер заңдарда шарттардың жекелеген түрлерi туралы өзгеше белгiленбесе, шарт жасасу кезiнде пайда болған келiспеушiлiктердi соттың қарауына беруге құқылы.
4. Егер осы Кодекске немесе өзге де заң құжаттарына сәйкес шарт жасасуға мiндеттi тарап оны жасасудан жалтарса, екiншi тарап шарт жасасуға мәжбүр ету туралы талап қойып сотқа жүгiнуге құқылы.
Шарт жасасудан негiзсiз жалтаратын тарап екiншi тарапқа шарт жасасудан бас тарту туғызған залалдың орнын толтыруға тиiс.
400-бап. Шарт жасасу алдындағы даулар
Осы Кодекстiң 399-бабының 2 және 3-тармақтарында көзделген реттерде, сондай-ақ шарт жасасу кезiнде туындаған келiспеушiлiктер тараптардың келiсуiмен соттың қарауына берiлген болса, шарттың тараптар келiспеген ережелерi сот шешiмiне сәйкес белгiленедi.
24-тарау. Шартты өзгерту және бұзу
401-бап. Шартты өзгерту және бұзу негiздерi
1. Егер осы Кодексте, басқа да заң құжаттары мен шартта өзгеше көзделмесе, шарт тараптардың келiсуiмен өзгертiлуi және бұзылуы мүмкiн.
2. Тараптардың бiреуiнiң талабы бойынша шарт: 1) екiншi тарап шартты едәуiр бұзған кезде; 2) осы Кодексте, басқа да заң құжаттарында немесе шартта көзделген өзге
реттерде тек сот шешiмiмен өзгертiлуi немесе бұзылуы мүмкiн. Тараптардың бiреуi шартты бұзып, ол екiншi тарап шарт жасасу кезiнде үмiт
артуға құқылы болғанынан едәуiр дәрежеде айрылып қалатындай шығынға әкеп соқса бұл шарттың едәуiр дәрежеде бұзылуы деп танылады.
3. Шартты орындаудан бiржақты бас тартылған жағдайда (шарттан тиiсiнше iшiнара немесе толығымен бас тарту (осы Кодекстiң 404-бабы) шарт өзгертiлдi немесе бұзылды деп есептеледi.
Ескерту. 401-бапқа өзгерту енгізілді - ҚР 1998.03.02 N 211 Заңымен.
402-бап. Шартты өзгерту және бұзу тәртiбi
1. Шартты өзгерту және бұзу тәртiбi туралы келiсiм, егер заңдардан, шарттан немесе iскерлiк қызмет өрiсiндегi әдеттегi құқықтардан өзгеше туындамаса, шарт жасалатын сияқты нысанда жасалады.
2. Шартты өзгертуге немесе бұзуға ұсыныстан екiншi тараптың бас тартуы алынғаннан кейiн, не ұсыныста көрсетiлген немесе заңдарда не шартта белгiленген мерзiмде, ал ондай мерзiм болмаған кезде отыз күн мерзiмде жауап алынбағаннан кейiн ғана тарап шартты өзгерту немесе бұзу туралы талапты сотқа мәлiмдей алады.
403-бап. Шартты бұзу және өзгерту салдары
1. Шартты бұзу кезiнде тараптардың мiндеттемелерi тоқтатылады. 2. Шарт өзгертiлген кезде тараптардың мiндеттемелерi өзгертiлген түрiнде
қолданыла бередi. 3. Шарт бұзылған немесе өзгертiлген ретте, егер тараптардың келiсуiмен
немесе шарттың өзгеру сипатынан өзгеше туындамайтын болса, мiндеттемелер шартты өзгерту немесе бұзу туралы тараптар келiсiмге келген кезден бастап, ал шарт сот тәртiбiмен бұзылған немесе өзгертiлген жағдайда - шартты бұзу немесе өзгерту туралы сот шешiмi заңды күшiне енген кезден бастап тоқтатылған немесе өзгертiлген болып есептеледi.
4. Егер заң актiлерiнде немесе тараптардың келiсiмiнде өзгеше белгiленбесе, тараптардың шартты бұзған немесе өзгерткен кезге дейiн мiндеттеме бойынша өздерi атқарған жұмысты қайтарып берудi талап етуге құқығы жоқ.
5. Егер шартты бұзуға немесе өзгертуге бiр тараптың шартты едәуiр бұзғаны негiз болса, екiншi тарап шарттың бұзылуынан немесе өзгертiлуiнен келтiрiлген залалдың орнын толтырылуын талап етуге құқылы.
Ескерту. 403-бапқа өзгерту енгізілді - ҚР 1998.03.02 N 211 Заңымен.
404-бап. Шартты орындаудан бiржақты бас тарту (шарттан бас тарту)
1. Шартты орындаудан бiржақты бас тартуға (Шарттан бас тартуға) осы Кодексте, өзге де заң актiлерiнде немесе тараптардың келiсiмiнде көзделген жағдайларда жол берiледi.
2. Тараптардың бiрi, атап айтқанда: 1) шартқа негiзделген мiндеттеменi орындау мүмкiн болмаған (осы Кодекстiң
374-бабы);
2) егер Қазақстан Республикасының оңалту және банкроттық туралы заңнамалық актісінде өзгеше белгіленбесе, белгiленген тәртiппен екiншi тарапты банкрот деп таныған;
3) шарт жасалғанда негiзге алынған мемлекеттiк органның актiсi өзгертiлген немесе күшi жойылған жағдайларда шартты орындаудан бас тартуға құқылы.
3. Егер заң актiлерiнде немесе тараптардың келiсiмiнде өзгеше көзделмесе, шарт мерзiмi көрсетiлмей жасалған жағдайда шартты орындаудан бiржақты бас тартуға жол берiледi.
4. Егер осы Кодексте, басқа да заң актiлерiнде немесе тараптардың келiсiмiнде өзгеше көзделмесе, шартты орындаудан бiржақты бас тартылған жағдайда бiр тарап бұл туралы екiншi тарапқа бiр айдан кешiктiрмей ескертуге тиiс.
Ескерту. 404-бап жаңа редакцияда - ҚР 1998.03.02 N 211 Заңымен; өзгеріс енгізілді - ҚР 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
405-бап. Шарттың қолданылу мерзiмiн ұзарту
Тараптар шарттың қолданылуын жаңа мерзiмге ұзартуға құқылы. Шарттың қолданылу мерзiмi осы Кодекстiң 397-бабының ережелерi бойынша
ұзартылады. Қазақстан Республикасының Президентi
© 2012. Қазақстан Республикасы Әділет министрлігінің «Қазақстан Республикасының Заңнама және құқықтық ақпарат институты» ШЖҚ РМК
Қазақстан Республикасының азаматтық кодексі (ерекше бөлім)
Мұрағаттық версия Қазақстан Республикасының 1999 жылғы 1 шілдедегі N 409 Кодексі. МАЗМҰНЫ
Ескерту. Мәтiнде "бөлiм" деген сөздiң алдындағы "IV - VII" деген цифрлар тиiсiнше "4 - 7" деген цифрлармен ауыстырылды - ҚР 2004.12.20 (2005N 13 жылғы 1 қаңтардан бастап қолданысқа енгізіледі) Заңымен.
Қ О Л Д А Н У Ш Ы Л А Р Н А З А Р Ы Н А ! ҚР 2005.11.22 Заңымен енгізілген өзгерістер әртүрлі уақыттаN 90
қолданысқа енгізілген ( қараңыз). Қажет болған жағдайда "Заң" Деректер2-бапты базасының 5 версиясының алдыңғы редакцияларын қараңыз.
4 бөлім Міндеттемелердің жекелеген түрлері 25-тарау. Сатып алу-сату Параграф 1. Сатып алу-сату туралы жалпы ережелер
406-бап. Сатып алу-сату шарты
1. Сатып алу-сату шарты бойынша бiр тарап (сатушы) мүлiктi (тауарды) екiншi тараптың (сатып алушының) меншiгiне, шаруашылық жүргiзуiне немесе жедел басқаруына беруге мiндеттенедi, ал сатып алушы бұл мүлiктi (тауарды) қабылдауға және ол үшiн белгiлi бiр ақша сомасын (бағасын) төлеуге мiндеттенедi.
2. Бағалы қағаздар мен валюталық құндылықтарды сатып алу-сатуға, егер заң актiлерiнде оларды сатып алу-сатудың арнаулы ережелерi белгiленбесе, осы параграфта көзделген ережелер қолданылады.
2-1. Ислам банкінің банк қызметін жүзеге асыруы кезінде оның тауарларды сатып алу-сату ерекшеліктері Қазақстан Республикасының банк қызметін реттейтін заңнамалық актілерінде белгіленеді.
3. Осы Кодексте немесе өзге де заң актiлерiнде көзделген жағдайларда тауарлардың жекелеген түрлерiн сатып алу-сату ерекшелiктерi заң актiлерiнде және өзге де нормативтiк құқықтық актiлерде белгiленедi.
4. Осы параграфта көзделген ережелер, егер бұл құқықтардың мазмұнынан немесе сипатынан өзгеше туындамаса, мүлiктiк құқықтарды сатуға қолданылады.
5. Сатып алу-сату шарттарының жекелеген түрлерiне (бөлшек саудамен сатып алу-сату, тауарлар жеткiзiлiмi, энергиямен жабдықтау, контрактация, кәсiпорынды сату), егер осы Кодекстiң ережелерiнде бұл түрлердiң шарттары туралы өзгеше көзделмесе, осы параграфта көзделген ережелер қолданылады.
6. Сот шешімдерін орындау үшін белгіленген тәртіппен мүлікті сату кезінде сот орындаушысы сатушы ретінде шығады.
Ескерту. 406-бапқа өзгерту енгізілді - ҚР 2009.02.12 N 133-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2010.04.02 N 262-IV(2010.10.21 бастап қолданысқа енгізіледі) Заңдарымен.
407-бап. Тауар туралы шарттың талабы
1. Осы Кодекстiң 116-бабындағы ережелердi сақтай отырып, кез келген зат шарт бойынша сатып алу-сату тауары бола алады.
2. Шарт жасасқан кезде сатушының қолында бар тауарды, сондай-ақ заң актiлерiнде өзгеше белгiленбесе немесе тауардың сипатынан өзге жағдай туындамаса, сатып алушының болашақта шығаратын немесе сатып алатын тауарын сатып алу-сатуға шарт жасалуы мүмкiн.
3. Егер шарт тауарлардың атауын және санын айқындауға мүмкiндiк берсе, тауар туралы талап (елеулi талаптар) келiсiлген деп есептеледi.
408-бап. Сатушының тауар беру жөнiндегi мiндеттерi
1. Сатушы шартта көзделген тауарды сатып алушыға беруге мiндеттi. 2. Егер шартта өзгеше көзделмесе, сатушы тауарды берумен бiрге сатып
алушыға оның керек-жарақтарын, сондай-ақ нормативтiк құқықтық актiлерде немесе шартта көзделген, соған қатысты құжаттарды (тауардың жиынтықтылығын, қауіпсіздігін, сапасын, пайдалану тәртiбiн және т.б. куәландыратын құжаттарды) беруге мiндеттi.
409-бап. Тауарды беру мiндетiн орындау мерзiмi
1. Сатушының сатып алушыға тауарды беру мiндетiн орындау мерзiмi шартта белгiленедi, ал егер шартта мерзiмдi белгiлеуге мүмкiндiк болмаса, осы Кодекстiң 277-бабында көзделген ережелерге сәйкес белгiленедi.
2. Егер мерзiм бұзылған кезде сатып алушының шартты орындауға мүдделiлiгi жоғалатындығы шарттан айқын туындайтын болса, сатып алу-сату шарты оны қатаң белгіленген мерзімде орындау талабымен жасалды деп танылады.
Сатушының мұндай шартты онда белгiленген мерзiм басталғанға дейiн немесе бiткеннен кейiн сатып алушының келiсуiнсiз орындауға құқығы жоқ.
Заң актiлерiнде немесе шартта сатып алу-сату шартын бөлiп орындау жағдайлары (шартты орындаудың аралық мерзiмдерi) белгiленуi мүмкiн.
410-бап. Сатушының тауар беру мiндетiн орындау кезі
1. Егер сатып алу-сату шартында өзгеше көзделмесе, сатушының сатып алушыға тауар беру мiндетi:
1) егер шартта тауарды жеткiзiп беру бойынша сатушының мiндетi көзделсе, сатып алушыға немесе ол атаған адамға тауарды берген;
2) егер тауар сол тауар орналасқан жерде сатып алушыға немесе ол атаған адамға берiлуге тиiс болса, сатып алушының билiгiне тауар берген кезiнде орындалған болып есептеледi.
Тауар шартта көзделген мерзiмде тиiстi жерде беруге дайын тұрған және сатып алушы шарт талаптарына сәйкес тауардың беруге дайын екендiгi туралы хабардар болған кезде тауар сатып алушының билiгiне берiлген болып есептеледi . Егер тауар таңбалау арқылы немесе өзгеше түрде шарт мақсаттары үшiн сәйкестендiрiлмесе тауар берiлуге дайын емес деп танылады.
2. Тауарды жеткiзiп беру немесе сатып алушыға оның орналасқан жерiнде тауар беру жөнiнде сатып алу сату шартынан сатушының мiндетi туындамаған жағдайларда, егер шартта өзгеше көзделмесе, тауарды тасымалдаушыға немесе сатып алушыға жеткiзу үшiн байланыс ұйымына берген кезде сатушының тауарды сатып алушыға беру мiндетi орындалған болып есептеледi.
411-бап. Тауардың кездейсоқ жойылу қаупiнiң ауысуы
1. Егер сатып алу-сату шартында өзгеше көзделмесе, тауардың кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi сатушы заң актiлерiне немесе шартқа сәйкес сатып алушыға тауар беру жөнiндегi өз мiндетiн атқарды деп есептелетiн кезден бастап сатып алушыға ауысады.
2. Жолда келе жатқан кезде сатылған тауардың кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi, егер шартта немесе iскерлiк айналым ғұрпында өзгеше көзделмесе, сатып алу-сату шарты жасалған кезден бастап сатып алушыға ауысады.
Егер шарт жасасқан кезде сатушы тауардың жоғалтылғанын немесе бүлiнгенiн бiлсе немесе бiлуге тиiс болса және бұл туралы сатып алушыға хабарламаса, тауардың кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi сатып
алушының талап етуi бойынша тауар бірінші тасымалдаушыға өткізілген кезден бастап сатып алушыға ауысатындығы туралы шарт талабын сот жарамсыз деп тануы мүмкiн.
412-бап. Сатушының сатылған тауарды сақтау жөнiндегi мiндетi
Меншiк құқығы, шаруашылық жүргiзу немесе оралымды басқару құқығы сатып алушыға тауарды берместен бұрын ауысқан кезде сатушы тауарды бергенге дейiн оның нашарлауына жол бермей сақтауға мiндеттi.
Егер тараптардың келiсiмiнде өзгеше көзделмесе, сатып алушы сатушыға бұған қажеттi шығындарды өтеуге мiндеттi.
413-бап. Сатушының үшiншi тұлғалардың құқықтарынан тыс тауарды беру мiндетi
1. Сатып алушы үшiншi тұлғалардың құқықтары жүктелген тауарды қабылдауға келiскен жағдайды қоспағанда, сатушы үшiншi тұлғалардың кез келген құқықтарынан тыс тауарды сатып алушыға беруге мiндеттi.
Егер тауарға үшiншi тұлғалардың құқықтары туралы сатып алушының бiлгендiгi немесе бiлуге тиiс екендiгi дәлелденбесе, сатушының бұл мiндеттердi орындамауы сатып алушыға сол тауардың сатып алу бағасын кемiтудi не шартты бұзуды және залалдарды өтеудi талап ету құқығын бередi.
2. Тауарды сатып алушыға беру кезiнде үшiншi тұлғалардың оған қатысты талаптары болып, ол жөнiнде сатушы білген жағдайда да, егер бұл талаптар кейiннен белгiленген тәртiппен заңды деп танылса, тиiсiнше осы баптың 1- тармағында көзделген ережелер қолданылады.
414-бап. Сатып алушыдан тауарды алып қойған жағдайдағы сатушының жауапкершiлiгi
1. Шартты орындауға дейiн пайда болған негiздер бойынша үшiншi тұлғалар сатып алушыдан тауарды алып қойған кезде сатушы, егер сатып алушы осы негiздердiң болғаны туралы бiлгенiн немесе білуге тиіс екенін дәлелдей алмаса, сатып алушыға оның шеккен залалын өтеуге мiндеттi.
2. Үшiншi тұлғалар сатып алушыдан сатып алынған тауарды талап еткен жағдайда, тараптардың сатушыны жауапкершiлiктен босату немесе жауапкершiлiгiн шектеу туралы келiсiмi маңызсыз болады.
Ескерту. 414-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
415-бап. Тауарды алып қою туралы талап арыз берiлген жағдайдағы сатып алушы мен сатушының мiндеттерi
1. Егер үшiншi тұлға шарт орындалғанға дейiн туындаған негiздер бойынша сатып алушыға тауарды алып қою туралы талап арыз қойса, сатып алушы сатушыны бұл iске қатысуға тартуға мiндеттi, ал сатушы бұл іске сатып алушы тарапынан араласуға міндетті.
2. Егер сатушы iске қатыса отырып, сатылған тауарды сатып алушыдан алып қоюды болдырмайтынын дәлелдей алса, сатып алушының сатушыны iске қатысуға тартпауы сатушыны сатып алушы алдындағы жауапкершіліктен босатады.
3. Сатып алушы iске қатысуға тартқан, бiрақ оған қатыспаған сатушы сатып алушының iстi дұрыс жүргiзбегенiн дәлелдеу құқығынан айырылады.
416-бап. Тауар беру мiндетiн орындамаудың салдары
1. Егер сатушы сатып алушыға сатылған тауарды беруден бас тартса, сатып алушы сатып алу-сату шартын орындаудан бас тартуға құқылы.
2. Сатушы белгiлi бiр жеке затты беруден бас тартқан жағдайда сатып алушы сатушыға осы Кодекстiң 355-бабында көзделген талаптарды қоюға құқылы.
417-бап. Тауарға қатысты керек-жарақтар мен құжаттарды беру мiндетiн орындамаудың салдары
1. Егер сатушы өзi беруге тиiстi (осы Кодекстiң 408-бабының 2-тармағы) Тауарға қатысты керек-жарақтарды немесе құжаттарды сатып алушыға бермесе немесе беруден бас тартса, сатып алушы оларды беру үшiн оған қисынды мерзiм тағайындауға құқылы.
2. Сатушы тауарға қатысты керек-жарақтарды немесе құжаттарды аталған мерзiмде бермеген жағдайда, егер шартта өзгеше көзделмесе, сатып алушы тауарды қабылдаудан бас тартуға құқылы.
418-бап. Тауардың саны
Сатып алушыға берiлуге тиiс тауар саны шартта тиiстi өлшем бiрлiктерiне сәйкес немесе ақшалай түрде көзделедi. Тауарлардың саны туралы талап оны айқындау тәртiбiн шартта белгiлеу жолымен келiсiлуi мүмкiн.
419-бап. Тауардың саны туралы шарт талаптарын бұзудың салдары
1. Егер сатушы шарт талаптарын бұза отырып, сатып алушыға тауар санын шартта белгіленгенінен кемірек берсе, сатып алушы, егер шартта өзгеше көзделмесе, не тауардың жетiспейтiн санын берудi талап етуге, не берiлген тауардан және оған ақы төлеуден бас тартуға, ал егер ақысы төленiп қойған болса, оған төленген ақша сомасын қайтаруды талап етуге құқылы.
2. Сатушы сатып алушыға тауарды шартта көрсетiлгенiнен артық мөлшерде берген жағдайда сатып алушы бұл туралы сатушыға осы Кодекстiң 436-бабының 1-тармағында көзделген тәртiппен хабарлауға мiндеттi. Егер сатып алушыдан хабар алынғаннан кейiн қисынды мерзiмде сатушы тиiстi тауарға билiк етпесе, шартта өзгеше көзделмегендiктен, сатып алушы бүкіл тауарды қабылдауға құқылы.
3. Сатып алушы тауарды шартта белгiленгенiнен артық мөлшерде қабылдаған жағдайда тиiстi тауарға ақы, егер тараптардың келiсiмiнде өзгеше баға белгiленбесе, шартқа сәйкес қабылданған тауар үшiн белгiленген баға бойынша төленедi.
420-бап. Тауарлардың түр-түрi
Егер сату-сатып алу шарты бойынша түрлерiне, үлгiлерiне, мөлшерiне, түстерi мен өзге де белгiлерiне (түр-түрi) қарай белгiленген тауарлар берiлуге тиiс болса, сатушы сатып алушыға тауарларды тараптар келiскен түр-түрi бойынша беруге мiндетті.
421-бап. Тауарлардың түр-түрi туралы шарт талаптарын бұзудың салдары
1. Сатушы шартта көзделген тауарлардың түр-түрiн шартқа сәйкес келмейтiн етiп берген кезде сатып алушы оларды қабылдаудан және ақы төлеуден бас тартуға, ал егер оларға ақы төленіп қойған болса, төленген ақша сомасын қайтаруды талап етуге құқылы.
2. Егер сатушы сатып алушыға түр-түрi шартқа сәйкес келетiн тауарлармен қатар, олардың түр-түрi туралы шарттың талаптарын бұза отырып тауарлар берсе сатып алушы өз қалауы бойынша:
1) түр-түрi туралы шарттың талаптарына сәйкес келетiн тауарларды қабылдап , қалған тауарлардан бас тартуға;
2) берiлген барлық тауарлардан бас тартуға; 3) түр-түрi туралы шарттың талаптарына сәйкес келмейтiн тауарларды
шартта көзделген түр-түрiндегi тауарлармен алмастыруды талап етуге; 4) берiлген барлық тауарларды қабылдап алуға құқылы. 3. Түр-түрі шарттың талаптарына сәйкес келмейтін тауарлардан бас тартқан
немесе түр-түрi туралы шарттың талаптарына сәйкес келмейтiн тауарларды
алмастыру жөнiнде талап қойған жағдайда сатып алушы бұл тауарларға ақы төлеуден бас тартуға да, ал егер ақы төленіп қойған болса, төленген соманың қайтарылуын талап етуге құқылы.
4. Егер сатып алушы түр-түрi туралы шарттың талаптарына сәйкес келмейтiн тауарларды алғаннан кейiн он бес күн мерзiмде өзiнiң тауарлардан бас тартатынын сатушыға хабарламаса, олар қабылданған болып есептеледi.
5. Егер сатып алушы түр-түрi шартқа сәйкес келмейтiн тауарлардан бас тартпаса, оларға сатушымен келiсiлген баға бойынша ақы төлеуге мiндеттi. Сатушы бағаны он бес күн мерзiмде келiсу жөнiнде қажеттi шаралар қолданбаған жағдайда, сатып алушы тауарға шарт жасалған кезде әдетте сол сияқты мән-жайларда ұқсас тауарлар үшiн алынатын баға бойынша ақы төлейдi.
6. Егер сатып алу-сату шартында өзгеше көзделмесе, осы баптың ережелерi қолданылады.
422-бап. Тауардың сапасы
1. Сатушы сатып алушыға сапасы шартқа сәйкес келетiн тауар беруге мiндеттi.
2. Шартта тауардың сапасы туралы талаптар болмаған жағдайда сатушы сатып алушыға әдетте осы сияқты тауар пайдаланылатын мақсаттарға жарамды тауар беруге міндетті.
Егер сатушы шарт жасасу кезінде сатып алушыға тауарды сатып алудың нақты мақсаттары туралы хабарламаған болса, сатушы сатып алушыға осы мақсаттарға сәйкес пайдалануға жарамды тауар беруге міндетті.
3. Тауарды үлгiсi бойынша және (немесе) сипаттамасы бойынша сатқан жағдайда сатушы сатып алушыға үлгіге және (немесе) сипаттамасына сәйкес келетiн тауар беруге мiндеттi.
4. Егер сатылатын тауардың сапасына заң актiлерiнде белгiленген тәртiпке сәйкес, мiндеттi талаптар көзделсе, кәсiпкерлiк қызметтi жүзеге асыратын сатушы сатып алушыға осы мiндеттi талаптарға сәйкес келетiн тауар беруге мiндеттi.
Сатушы мен сатып алушы арасындағы келісім бойынша, заң актілерінде көзделген тәртіппен белгіленген міндетті талаптармен салыстырғанда, сапаға қойылатын жоғары талаптарға сәйкес келетiн тауар берiлуi мүмкiн.
5. Сатушы сатып алушыға беруге мiндеттi тауар оны сатып алушыға берер кезде, егер тауардың бұл талаптарға сәйкестiгiн айқындаудың өзгеше жағдайы шартта көзделмесе, осы бапта көзделген талаптарға сәйкес келуге тиiс және қисынды мерзiм шегінде әдетте осы тектес тауар пайдаланылатын мақсаттар үшін жарамды болуға тиіс.
423-бап. Тауардың жарамдылық мерзiмi
1. Заңдарда, ұлттық стандарттардың мiндеттi талаптарында немесе басқа да мiндеттi ережелерде бітуiне қарай тауар мақсаты бойынша пайдалануға жарамсыз деп саналатын уақыт кезеңi (жарамдылық мерзiмi), сондай-ақ тауарда оның жарамдылық мерзiмi көрсетiлетiн жағдайлар белгіленуi мүмкiн.
2. Сатушы жарамдылық мерзiмi белгiленген тауарларды сатып алушыға жарамдылық мерзiмi бiткенге дейiн олардың мақсаты бойынша пайдалануға болатындай есеппен беруге мiндетті.
Ескерту. 423-бапқа өзгеріс енгізілді - ҚР 2012.07.10 № 31-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
424-бап. Тауардың жарамдылық мерзiмін есептеу
Тауардың жарамдылық мерзiмi оның дайындалған күнiнен бастап есептелетiн , осы мерзiм iшiнде тауар пайдалануға жарамды болатын уақыт кезеңiмен, не ол басталғанға дейін тауар пайдалануға жарамды болатын күнмен белгiленедi.
425-бап. Тауар сапасына кепiлдiк беру
1. Шартта сатушының тауар сапасына кепiлдiк беруi көзделген жағдайда сатушы шартта белгіленген белгiлi бір уақыт кезеңi (кепiлдi мерзiм) iшiнде сатып алушыға осы Кодекстiң 422-бабында көзделген талаптарға сәйкес келуге тиiстi тауар беруге мiндеттi.
2. Тауар сапасына кепiлдiк, егер шартта өзгеше көзделмесе, оның барлық құрамдас бөлiктерiне де (жиынтықтаушы бұйымдарына) қолданылады.
426-бап. Кепiлдi мерзiмдi есептеу тәртiбi
1. Кепiлдi мерзiм, егер шартта өзгеше көзделмесе, тауар сатып алушыға берiлген кезден (осы Кодекстiң 410-бабы) есептеле бастайды.
2. Егер сатып алушының сатушыға байланысты мән-жайлар бойынша шартта кепiлдi мерзiм белгiленген тауарды пайдалану мүмкiндiгi болмаса, сатушы тиісті мән-жайларды жойғанға дейін кепiлдi мерзiм өтпей тұрады.
Егер шартта өзгеше көзделмесе, осы Кодекстiң 436-бабында белгiленген тәртiп бойынша сатып алушыға тауардың кемшiлiктерi туралы хабарланған жағдайда, кепiлдi мерзiм тауар ондағы байқалған кемшiлiктер себептi пайдаланыла алмаған уақытқа ұзартылады.
3. Егер шартта өзгеше көзделмесе, жинақтаушы бұйымға берiлген кепiлдi мерзiм негiзгi бұйымға берiлген кепiлдi мерзiмге тең болып есептеледі және негізгі бұйымға берілген кепілді мерзiммен бiр мезгiлде өте бастайды.
4. Егер шартта өзгеше көзделмесе, тауарды (жиынтықтаушы бұйымды) алмастырған кезде кепілді мерзім қайтадан басталады.
427-бап. Тауар сапасын тексеру
1. Егер заңдарда немесе шартта тауардың сапасын тексеру көзделсе, ол соларда белгiленген талаптарға сәйкес жүзеге асырылуға тиiс.
Ұлттық стандарттарда, стандарттау жөніндегі өзге де нормативтiк құжаттарда тауарлардың сапасын тексеруге мiндеттi талаптар белгiленген жағдайларда сапаны тексеру оларда келтiрiлген нұсқауларға сәйкес жүзеге асырылуға тиiс.
2. Егер осы баптың 1-тармағында белгiленген тәртiппен тауар сапасын тексеру талаптары көзделмесе, тауар сапасын тексеру iскерлiк айналым дағдыларына немесе әдетте шарт бойынша берiлуге тиiс тауарды тексеру жағдайларына қолданылатын өзге де талаптарға сәйкес жүргізілуге тиiс.
3. Егер заң актiлерiнде, ұлттық стандарттардың мiндеттi талаптарында, стандарттау жөнiндегi өзге де нормативтiк құжаттарда немесе шартта сатушының сатып алушыға беретін тауарының сапасын тексеру (сынақ өткiзу, талдау, қарап шығу және т.б.) мiндетi көзделген болса, сатушы сатып алушының талап етуi бойынша оған тауар сапасын тексерудi жүзеге асырғандығы жөнiнде дәлелдемелердi табыс етуге тиiс.
Ескерту. 427-бапқа өзгеріс енгізілді - ҚР 2012.07.10 № 31-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
428-бап. Тиiстi сапасы жоқ тауар берудiң зардаптары
1. Егер сатушы тауардың кемшiлiктерi туралы айтпаған болса, тиiстi сапасы жоқ тауар берiлген сатып алушы өз қалауы бойынша сатушыдан:
1) сатып алу бағасын сол мөлшерде кемiтудi; 2) қисынды мерзiмде тауардың кемшiлiктерiн тегiн жоюды; 3) тауардың кемшiлiктерiн жоюға жұмсаған өз шығындарын өтеуді; 4) тиiстi сапасы жоқ тауарды шартқа сәйкес келетiн тауармен алмастыруды; 5) шартты орындаудан бас тартуға және тауар үшiн төленген ақша сомасын
қайтаруды талап етуге құқылы. Шарттың осы тармақтың бірінші бөлігінде көзделген құқықтардан сатып
алушының бас тартуы туралы талаптары маңызсыз болады.
2. Жиынтыққа кiретiн тауарлардың (осы Кодекстiң 432-бабы) бір бөлiгiнiң сапасы тиісті деңгейде болмаған жағдайда сатып алушы тауарлардың осы бөлiгiне қатысты, осы баптың 1-тармағында көзделген құқықты жүзеге асыруға құқылы.
3. Тиiстi сапасы жоқ тауарды сатушы оның дайындаушысы болмайтын жағдайда тауарды алмастыру немесе оның кемшiлiктерiн тегiн жою туралы талаптар сатып алушының таңдауы бойынша сатушыға не дайындаушыға қойылуы мүмкiн.
4. Егер осы Кодексте немесе басқа да заң актiлерiнде өзгеше белгіленбесе, осы бапта көзделген ережелер қолданылады.
Ескерту. 428-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
429-бап. Тауардың сатушы жауап беретiн кемшiлiктерi
1. Егер сатып алушы тауардағы кемшiлiктердiң өзiне берiлгенге дейiн пайда болғанын немесе сол кезге дейiн пайда болған себептерден туындағанын дәлелдесе, тауардың кемшiлiктерi үшiн сатушы жауап бередi.
Сатушы сатылған тауардың кемшiлiктерi үшiн олар туралы өзi бiлмеген кезде де жауап бередi. Сатушыны жауапкершiлiктен босату туралы немесе оны шектеу туралы келiсiм маңызсыз болады.
2. Егер тауардағы кемшiлiктердiң олар сатып алушыға берілгеннен кейін сатып алушының тауарды пайдалану немесе оны сақтау ережелерiн бұзуы не үшiншi бiр тұлғалардың әрекеттерi немесе дүлей күштiң салдарынан пайда болғанын дәлелдемесе, сатушы сапа кепiлдiгiн берген тауарға қатысты тауардың кемшiлiктерi үшiн жауап бередi.
Ескерту. 429-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
430-бап. Берiлген тауардың кемшiлiктерiн анықтау мерзiмдерi
1. Егер заң актілерiнде немесе шартта өзгеше көзделмесе, тауар кемшіліктері осы бапта белгіленген мерзімде анықталған жағдайда сатып алушы оның кемшiлiктерiне байланысты талаптар қоюға құқылы.
2. Егер тауарға кепiлдi мерзiм немесе жарамдылық мерзiмi белгiленбесе, сатылған тауардағы кемшiлiктер қисынды мерзiмде, бiрақ тауардың сатып алушыға берiлген күнiнен бастап екi жыл шегiнде табылған жағдайда, егер заң актiлерiнде немесе шартта неғұрлым ұзақ мерзiм белгiленбесе, сатып алушы
тауардың кемшiлiктерiне байланысты талаптар қоя алады. Тасымалдануға немесе почта арқылы жөнелтiлуге тиiстi тауардың кемшiлiктерiн анықтауға арналған мерзiм тауардың жеткiзiлетiн жерiнде алынған күнiнен бастап есептеледi.
3. Егер тауарға кепілді мерзім белгіленсе, сатып алушы кепілді мерзім ішінде тауардың кемшiлiктерiн тапқан кезде тауардың кемшiлiктерiне байланысты талаптар қоюға құқылы.
Шартта негiзгi бұйымға қарағанда жиынтықтаушы бұйымдарға ұзақтығы қысқа кепiлдi мерзiм белгiленген жағдайда сатып алушы негізгі бұйымға белгіленген кепілді мерзім ішінде кемшіліктер табылған кезде жиынтықтаушы бұйымның кемшіліктері туралы талаптар қоюға құқылы.
Егер шартта негiзгi бұйымға белгiленген кепiлдi мерзiмге қарағанда жиынтықтаушы бұйымға ұзағырақ кепiлдi мерзiм белгiленсе, сатып алушы негiзгi бұйымға белгiленген кепiлдi мерзiмнiң өткенiне қарамастан, жиынтықтаушы бұйымның кемшiлiктерi оған белгiленген кепiлдi мерзiм iшiнде табылса, тауар кемшiлiктерi туралы талаптар қоюға құқылы.
4. Егер кемшiлiктер тауардың жарамдылық мерзiмi iшiнде табылса, сатып алушы жарамдылық мерзiмi белгiленген тауарға қатысты тауардың кемшiлiктерi туралы талаптар қоюға құқылы.
5. Шартта көзделген кепiлдi мерзiм екi жылдан кем болып, сатып алушы тауардың кемшiлiктерiн кепiлдi мерзiм өткеннен кейін, бiрақ тауардың сатып алушыға берiлген күнiнен бастап екi жыл шегiнде тапқан жағдайда, егер сатып алушы тауардың кемшiлiктерi тауар сатып алушыға берiлгенге дейiн немесе сол кезге дейiн пайда болған себептерден туындағанын дәлелдесе, сатушы жауап бередi.
431-бап. Тауардың жиынтықтылығы
1. Сатушы сатып алушыға тауарды шарттың талаптарына сәйкес жиынтықта беруге мiндеттi.
2. Шартта тауардың жиынтықтылығы белгiленбеген жағдайда сатушы сатып алушыға жиынтықтылығы iскерлiк айналым дағдыларымен немесе әдетте қойылатын өзге де талаптармен белгiленетiн тауар беруге мiндеттi.
Ескерту. 431-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
432-бап. Тауарлар жиынтығы
1. Егер шартта сатушының сатып алушыға белгiлi бiр жиынтықтағы тауарлар жинағын (тауарлар жиынтығын) беру мiндетi көзделсе, жиынтыққа енгiзiлген
барлық тауарлар берiлген кезден бастап мiндеттеме орындалған болып есептеледi.
2. Егер шартта өзгеше көзделмесе және ол мiндеттеменiң мәнiнен туындамаса , сатушы сатып алушыға жиынтыққа енетiн барлық тауарды бiр мезгiлде беруге мiндеттi.
433-бап. Жиынтықталмаған тауарлар берудiң салдары
1. Жиынтықталмаған тауарлар берiлген жағдайда (осы Кодекстiң 431-бабы) сатып алушы өз таңдауы бойынша сатушыдан:
1) сатып алу бағасын сол мөлшерде кемiтудi; 2) тауарларды қисынды мерзiмде толымды жиынтықтауды; 3) жиынтықталмаған тауарды жиынтықталған тауармен алмастыруды; 4) шартты орындаудан бас тартуға және тауар үшін төленген ақша сомасын
қайтаруды талап етуге құқылы. 2. Осы баптың 1-тармағында көзделген салдарлар, егер заңдарда не шартта
өзгеше көзделмесе немесе мiндеттеменiң мәнiнен туындамаса, сатушы сатып алушыға тауарлар жиынтығын (осы Кодекстiң 432-бабы) беру мiндеттемесiн бұзған жағдайда да қолданылады.
434-бап. Тауарды салатын ыдыс және оны буып-түю
1. Егер шартта өзгеше көзделмесе және мiндеттеменiң мәнiнен немесе тауарлардың сипатынан туындамаса, сатушы сатып алушыға тауарды ыдысқа салып және (немесе) буып-түйiп беруге мiндеттi.
2. Егер шартта ыдыс пен буып-түюге талаптар белгiленбесе, тауар, осындай тауарға арналған әдеттегi әдiспен, ал бұлай болмағанда - сақтау мен тасымалдаудың әдеттегi жағдайларында осы тектес тауарлардың сақталуын қамтамасыз ететiн әдiспен ыдысқа салынуға және (немесе) буып-түйiлуге тиiс.
3. Егер заңдарда белгiленген тәртiппен ыдысқа салынуға және (немесе) буып-түйiлуге мiндеттi талаптар көзделсе, кәсiпкерлiк қызметті жүзеге асыратын сатушы сатып алушыға тауарды осындай міндетті талаптарға сай келетiн ыдысқа салып және (немесе) буып-түйiп беруге мiндеттi.
435-бап. Тауарды ыдыссыз және (немесе) буып-түюсiз не тиiстi ыдысқа салмай және (немесе) буып-түймей берудiң салдары
1. Ыдысқа салынуға және (немесе) буып-түйiлуге тиіс тауар сатып алушыға ыдыссыз және (немесе) буып-түюсiз не тиiстi ыдысқа салынбай және (немесе) буып-түйiлмей берiлген жағдайда сатып алушы сатушыдан, егер шарттан,
мiндеттеменiң мәнiнен немесе тауардың сипатынан өзгеше туындамаса, тауарды ыдысқа салып және (немесе) буып-түйiп берудi не тиiстi дәрежеде емес ыдысты және (немесе) буып-түйiлген орауышты алмастыруды талап етуге құқылы.
2. Сатушыға осы баптың 1-тармағында аталған талаптар қоюдың орнына, сатып алушы оған тиiстi сапасы жоқ тауар беруден туындайтын өзге де талаптар қоюға құқылы (осы Кодекстiң 428-бабы).
436-бап. Сатушыға шартты тиiсiнше орындамағаны туралы хабарлау
1. Сатып алушы шарттағы тауардың саны, түр-түрі, сапасы, жиынтықталуы, ыдысқа салынуы және (немесе) буып-түйiлуi туралы талаптардың бұзылғандығы жөнінде сатушыға заң актiлерiнде, өзге де нормативтiк құқықтық актiлерде немесе шартта көзделген мерзiмде, ал егер мерзiм белгiленбесе, тауарлардың сипаты мен мақсатын негiзге ала отырып, шарттағы тиiстi талаптың бұзылуы байқалуға тиiс болғаннан кейiн қисынды мерзiмде хабарлауға мiндеттi.
2. Сатып алушы осы баптың 1-тармағында көзделген мiндеттi орындамаған жағдайда, егер мұндай дер кезiнде хабарламау өзiнiң талаптарын қанағаттандырудың мүмкiн болмауына әкеп соққанын немесе шарт талаптарының бұзылуы туралы дер кезiнде хабарлаған жағдаймен салыстырғанда сатушыға өлшеусiз шығындар келтiретiнiн дәлелдесе, сатушы сатып алушының тиiстi талаптарын қанағаттандырудан толық немесе iшiнара бас тартуға құқылы.
3. Егер сатушы сатып алушыға берiлген тауарлардың шарт талаптарына сәйкес келмейтiндiгiн бiлсе немесе бiлуге тиiс болса, оның сатып алушының осы баптың 1-тармағында көзделген мiндеттi орындамауына сiлтеме жасауына құқығы жоқ.
437-бап. Сатып алушының тауарды қабылдау мiндетi
1. Осы тараудың ережелерiне сәйкес тауарды ауыстыруды талап етуге немесе шартты орындаудан бас тартуға өзi құқылы болатын жағдайларды қоспағанда, сатып алушы өзіне сатушы берген тауарды қабылдауға мiндеттi.
2. Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, сатып алушы әдетте қойылатын талаптарға сәйкес, тиісті тауар беруді және алуды қамтамасыз ету үшiн өз тарапынан қажеттi iс-қимылдар жасауға міндеттi.
3. Сатып алушы заң актiлерiн немесе шартты бұза отырып, тауарды қабылдамаған не қабылдаудан бас тартқан жағдайларда, сатушы сатып алушыдан тауарды қабылдауды талап етуге немесе шартты орындаудан бас тартуға құқылы.
438-бап. Тауардың бағасы
1. Сатып алушы тауарға шартта көзделген баға бойынша, не ол шартта көзделмесе және оны шарт талаптарын негiзге ала отырып белгiлеу мүмкiн болмаса, осы Кодекстiң 385-бабының ережелерiне сәйкес белгіленетін баға бойынша ақы төлеуге, сондай-ақ өз есебінен заң актiлерiне, шартқа немесе әдетте қойылатын талаптарға сәйкес төлемді жүзеге асыру үшiн қажеттi iс-қимылдар жасауға мiндеттi.
2. Баға тауардың салмағына қарай белгiленген кезде, егер шартта өзгеше көзделмесе, ол ыдыссыз таза салмағы бойынша айқындалады.
3. Егер шартта тауар бағасын (өзiндiк құн, шығындар және т.б.) көрсететiн көрсеткiштерге қарай тауар бағасының өзгеруі тиiс екендігі көзделсе, бірақ бағаны қайта қарау әдісі белгіленбесе, баға көрсеткіштердің шарт жасасу кезіндегі және тауар беру жөніндегі мiндеттi орындау кезiндегi арақатынасын негiзге ала отырып белгiленедi. Сатушы тауар беру жөнiндегi мiндеттiң орындалуын кешiктiрiп алған жағдайда баға көрсеткiштердiң шарт жасасу кезiндегi және шартта көзделген тауар берiлетiн күндегi, ал шартта мұндай күн көзделмесе, осы Кодекстiң 277-бабына сәйкес белгiленген күнгi арақатынасын негiзге ала отырып белгiленедi.
Егер осы Кодексте, басқа да заң актiлерiнде өзгеше белгіленбесе не ол мiндеттеменiң мәнiнен туындамаса, осы тармақта көзделген ережелер қолданылады.
439-бап. Тауарға ақы төлеу
1. Егер шарт пен заң актiлерi талаптарынан бағаны белгiлi бiр мерзiмде төлеу мiндетi туындамаса, сатып алушы оны өзiне тауар немесе сол тауарға арналған тауарға билiк ету құжаттары берiлгеннен кейін кешiктiрмей төлеуге мiндеттi.
2. Егер шартта берiлген тауар ақысын бөлiп-бөлiп төлеу көзделмесе, сатушыға сатып алушы берiлген тауардың толық бағасы мөлшерiндегi соманы төлеуге мiндеттi.
3. Егер сатып алушы шартқа сәйкес берiлген тауарға ақы төлемесе, сатушы одан тауар ақысын төлеудi және басқа бiреудiң ақшасын пайдаланғаны үшiн тұрақсыздық айыбын төлеудi талап етуге құқылы (осы Кодекстiң 353-бабы).
4. Егер сатып алушы шартты бұза отырып, тауарды қабылдаудан және оған ақы төлеуден бас тартса, сатушы өз таңдауы бойынша тауарға ақы төлеуді талап етуге не шартты орындаудан бас тартуға құқылы.
5. Сатушы шартқа сәйкес сатып алушыға ақы төленбеген тауарлардан басқа да тауарлар беруге міндетті болған жағдайларда, егер заң актілерінде немесе шартта өзгеше көзделмесе, ол бұрын берілген барлық тауарларға ақы толық төленгенге дейін сол тауарларды беруді тоқтата тұруға құқылы.
440-бап. Тауарға алдын ала ақы төлеу
1. Шартта сатушы тауарды бергенге дейін бағасын толық немесе ішінара төлеу (алдын ала төлеу) жөнінде сатып алушының міндеті көзделген жағдайларда сатып алушы ақыны шартта көзделген мерзімде, ал егер шартта мерзім көзделмесе, осы Кодекстің 277-бабына сәйкес белгіленген мерзімде төлеуге тиіс.
2. Сатып алушы тауарға алдын ала ақы төлеу жөнiнде шартта көзделген мiндеттi орындамаған жағдайда осы Кодекстiң 284-бабында көзделген ережелер қолданылады.
3. Алдын ала төленетiн ақы сомасын алған сатушы өзiнiң тауар беру жөнiндегi мiндетiн белгiленген мерзiмде (осы Кодекстiң 409-бабы) орындамаған жағдайларда сатып алушы одан ақы төленген тауарды берудi немесе сатушы бермеген тауар үшiн алдын ала төленген ақы сомасын қайтаруды талап етуге құқылы.
4. Сатушы ақысы алдын ала төленген тауарды беру жөнiндегi мiндетiн орындамаған және сатып алу-сату шартында өзгеше көзделмеген жағдайда осы Кодекстің 353-бабына сәйкес тауар беру жүргізілуге тиіс болған күннен бастап сатып алушыға тауар беретін немесе оның алдын ала төлеген сомасы қайтарылатын күнге дейiн алдын ала төленген ақы сомасына тұрақсыздық айыбы төленуге тиiс. Шартта сатушының осы соманы алған күннен бастап алдын ала ақы төлеу сомасына тұрақсыздық айыбын төлеу мiндетi көзделуі мүмкiн.
441-бап. Кредитке сатылған тауарға ақы төлеу
1. Шартта сатып алушыға тауар берiлген соң белгiлi бiр уақыттан кейiн оған ақы төлеу (тауарды кредитке сату) көзделген жағдайларда сатып алушы ақыны шартта көзделген мерзiмде, ал егер шартта мерзiм көзделмесе, осы Кодекстiң 277 -бабына сәйкес белгiленген мерзiмде төлеуге тиiс.
2. Сатушы тауар беру жөнiндегi мiндеттi орындамаған жағдайда осы Кодекстiң 284-бабында көзделген ережелер қолданылады.
3. Тауарды алған сатып алушы оның ақысын төлеу мiндетiн шартта белгiленген мерзiмде орындамаған жағдайларда сатушы берiлген тауарға ақы төлеудi немесе ақы төленбеген тауарларды қайтаруды талап етуге құқылы.
Сатып алушы берiлген тауарға ақы төлеу жөнiндегi мiндетiн шартта белгiленген мерзiмде орындамаған және осы Кодекс пен шартта өзгеше көзделмеген жағдайларда мерзiмi өткiзiлген сомаға осы Кодекстiң 353-бабына сәйкес, сатып алушы тауарға ақы төлеуге тиiс болған күннен бастап, оның тауарға ақы төлеген күнiне дейiн тұрақсыздық айыбы төленуге тиiс.
4. Шартта сатушының тауар берген күнiнен бастап, тауардың бағасына сәйкес келетiн сомаға сатып алушының тұрақсыздық айыбын төлеу мiндетi көзделуі мүмкiн.
5. Кредитке тауар сату оның сатылған күнiнде қолданылған бағасы бойынша жүргiзiледi. Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, кредитке сатылған тауардың бағасында кейiннен жасалған өзгеріс қайта есеп айырысуға әкеп соқпайды.
442-бап. Тауарды кредитке сату кезiнде төлемдi бөлiп-бөлiп төлеу
1. Тауарды кредитке сату туралы шартта төлемді бөліп-бөліп төлеу көзделуi мүмкiн.
Егер сатып алу-сату шартында басқа да елеулi талаптармен қатар, баға, төлемдердiң тәртiбi, мерзiмi мен мөлшерi көрсетiлсе, төлемдi бөлiп-бөлiп төлеу талабымен тауарды кредитке сату туралы шарт жасалған болып есептеледi.
2. Сатып алушы бөлiп-бөлiп төлеу арқылы сатылған тауар үшiн кезектi төлемдi шартта белгiленген мерзiмде төлемесе, егер шартта өзгеше көзделмесе, сатушы, сатып алушыдан алған төлем сомасы тауар бағасының жартысынан асатын жағдайларды қоспағанда, шартты орындаудан бас тартуға және сатылған тауардың қайтарылуын талап етуге құқылы.
443-бап. Тауарды сақтандыру
1. Егер заң актiлерiнде өзгеше көзделмесе, сатып алу-сату шартында сатушының немесе сатып алушының тауарды сақтандыру мiндетi көзделуi мүмкiн.
2. Тауарды сақтандыруға мiндеттi тарап сақтандыруды шарт талаптарына сәйкес жүзеге асырмаған жағдайда, екiншi тарап тауарды сақтандыруға және міндетті тараптан сақтандыруға жұмсалған шығындарды өтеуін талап етуге не шартты орындаудан бас тартуға құқылы.
444-бап. Сатушының тауарға меншiк құқығының сақталуы
1. Тауардың ақысы төленгенге дейiн немесе өзге бiр мән-жайлар басталғанға дейiн сатушының сатып алушыға берiлген тауарға меншiк құқығы сақталатындығы шартта көзделген жағдайларда, егер заң актiлерiнде немесе шартта өзгеше көзделмесе не ол тауардың мақсаты мен қасиеттерiнен туындамаса, сатып алушының өзiне меншiк құқығы көшкенге дейiн тауарды иелiктен айыруға немесе оған өзгеше түрде билiк етуге құқығы жоқ.
2. Берiлген тауардың ақысы шартта көзделген мерзiмде төленбеген немесе меншiк құқығы сатып алушыға көшетiн өзге де мән-жайлар басталмаған жағдайларда сатушы сатып алушыдан, егер шартта өзгеше көзделмесе, тауарды өзiне қайтаруды талап етуге құқылы.
Параграф 2. Бөлшектеп сатып алу-сату
445-бап. Бөлшектеп сатып алу-сату шарты
Тауар сату жөніндегі кәсіпкерлік қызметті жүзеге асыратын сатушы бөлшектеп сатып алу-сату шарты бойынша сатып алушыға кәсiпкерлiк қызметке байланысты емес, әдетте жеке өзiне, отбасында, үйiнде немесе өзге де пайдалануға арналған тауарларды беруге мiндеттенедi.
Бөлшектеп сатып алу-сату шарты жария болып табылады (осы Кодекстiң 387- бабы).
446-бап. Бөлшектеп сатып алу-сату шартының нысаны
Егер заң актiлерiнде немесе бөлшектеп сатып алу-сату шартында, соның iшiнде сатып алушы қосылатын (осы Кодекстiң 389-бабы) формулярлардың немесе өзге де стандарттық нысандардың талаптарында өзгеше белгiленбесе, сатушы сатып алушыға касса немесе тауар чегiн немесе тауарға ақы төленгенiн растайтын өзге де құжатты берген кезден бастап бөлшектеп сатып алу-сату шарты тиiстi нысанда жасалған болып есептеледi. Аталған құжаттардың сатып алушыда болмауы оны шарттың жасалғандығын және оның талаптарын растайтын куәлiк айғақтарға сүйену мүмкiндiгiнен айырмайды.
447-бап. Тауардың көпшiлiкке арналған офертасы
1. Тауарларды көруге қою, олардың үлгiлерiн көрсету немесе тауарлар сатылатын жерде сатылатын тауарлар туралы мәлiметтер (сипаттамалар, каталогтар, фотосуреттер және т.б.) беру, сатушы тиістi тауарлардың сатуға арналмағандығын айқын көрсеткен жағдайларды қоспағанда, бағаның және сатып алу-сату шартының басқа да елеулі талаптарының көрсетілгенiне қарамастан, көпшiлiкке арналған оферта болып танылады.
2. Тауардың оның жарнамасында, каталогтарында, сондай-ақ тауар сатылмайтын жерлерде тауардың беймәлім адамдар тобына арналған және тауардың сатып алу-сату шартының елеулi талаптары болмаған басқа да сипаттамаларында көрсетiлген ұсынымы көпшiлiкке арналған оферта деп танылмайды.
448-бап. Сатып алушыға тауар туралы ақпарат беру
1. Сатушы сатуға ұсынылатын тауар туралы сатып алушыға қажетті және анық ақпарат беруге мiндеттi. Бұл ақпарат заң актiлерiнде белгiленген талаптарға және әдетте бөлшек саудада осындай ақпарат берудiң мазмұны мен әдiсiне қойылатын талаптарға сәйкес болуға тиiс.
2. Сатып алушы шарт жасалғанға дейiн, егер бұған тауардың сипатына байланысты тыйым салынбаса және бөлшек саудада қабылданған ережелерге қайшы келмесе, тауарды көруге, өзiнiң қатысуымен тауардың қасиеттерiн тексерудi немесе оның пайдаланылуын көрсетудi талап етуге құқылы.
3. Сатып алушыға тауар туралы тиісті ақпарат алуға мүмкіндік бермеген сатушы тауардың оны сатып алушыға бергеннен кейін пайда болған, сатып алушы өзiнде ақпараттың болмауына байланысты туындағанын дәлелдеген кемшiлiктерi үшiн де жауап бередi.
449-бап. Сатып алушының тауарды белгiлi бiр мерзiмде қабылдап алуы туралы талап қойылған шарт
1. Тараптар сатып алушының тауарды шартта белгiленген мерзiмде қабылдап алуы туралы талап қойылған шарт жасасуы мүмкiн, осы мерзiм iшiнде тауарды басқа сатып алушыға сатуға болмайды.
2. Егер шартта өзгеше көзделмесе, сатып алушының келмей қалуын немесе шартта белгiленген мерзiмде тауарды қабылдап алу үшiн өзге де қажеттi әрекеттер жасалмауын сатушы сатып алушының шартты орындаудан бас тартуы ретiнде қарастыруы мүмкiн.
3. Шартта белгiленген мерзiмде сатып алушыға тауар берудi қамтамасыз ету жөнiндегi сатушының қосымша шығындары, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, тауардың бағасына енгiзiледi.
450-бап. Тауарларды үлгiлерi бойынша сату
1. Бөлшектеп сатып алу-сату шарты сатып алушының сатушы ұсынған тауар үлгiсімен (оның сипаттамасымен, тауарлар каталогымен және т.б.) танысуы негiзiнде жасалуы мүмкiн.
2. Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, шартта көрсетiлген жерге тауар жеткiзiлген кезден бастап, ал егер шартта тауар беретін орын белгіленбесе, азаматтың тұрғылықты жері немесе заңды тұлғаның орналасқан жерi бойынша сатып алушыға тауар жеткiзiлген кезден бастап шарт орындалған болып есептеледi.
3. Сатушы шартты орындау жөнiнде әрекет жасалуына байланысты қисынды шығындарды өтеген жағдайда сатып алушы тауар берiлгенге дейiн шартты орындаудан бас тартуға құқылы.
451-бап. Автоматтарды пайдалана отырып тауар сату
1. Тауар сату автоматтарды пайдалана отырып жүргiзiлген жағдайларда автоматтардың иесi сатып алушыларға тауар туралы (атауы, саны, бір тауардың бағасы және т.б.), автоматқа орналастыру арқылы тауардың сатушысы туралы ақпарат жеткiзуге немесе сатып алушыларға сатушының атауы (фирмалық атауы ), оның орналасқан жерi, жұмыс режимi, сондай-ақ сатып алушының тауар алу үшiн жасайтын қажеттi әрекеттерi туралы өзге де әдiстермен мәлiметтер беруге мiндеттi.
2. Сатып алушы тауар алуға қажеттi әрекеттер жасаған кезден бастап шарт жасалған болып есептеледi.
3. Егер сатып алушыға ақысы төленген тауар берiлмесе, сатушы тауардың сатып алушыға дереу берiлуiн немесе оның сатып алушының сол тауар үшiн төлеген ақша сомасының қайтарылуын қамтамасыз етуге міндетті.
452-бап. Сатып алушыға тауар жеткiзiп беру туралы талап қойылатын шарт
1. Сатып алушыға тауар жеткiзiп беру туралы талап қойылып шарт жасалған жағдайларда сатушы тауарды сатып алушы көрсеткен жерге шартта белгіленген мерзімде жеткізіп беруге міндетті.
2. Егер заң актілерінде, шартта өзгеше көзделмесе немесе ол міндеттеменің мәнінен туындамаса, сатып алушыға, ал ол болмаған кезде - шарттың жасалғандығын немесе тауарды жеткізіп берудің ресімделуін куәландыратын түбіртекті немесе өзге бір құжатты көрсеткен кез келген адамға тауар табыс етілген кезден бастап сатушы шартты орындады деп есептеледі.
453-бап. Тауардың бағасы және оған ақы төлеу
1. Егер заң актілерінде өзгеше көзделмесе немесе ол міндеттеменің мәнінен туындамаса, сатып алушы шарт жасасу кезінде сатушы жариялаған баға бойынша тауарға ақы төлеуге міндетті.
2. Шартта тауарға алдын ала ақы төлеу (осы Кодекстің 440-бабы) көзделген жағдайларда сатып алушының шартта белгіленген мерзімде тауарға ақы төлемеуі , егер тараптардың келісімінде өзгеше көзделмесе, сатып алушының шартты орындаудан бас тартқаны деп танылады.
3. Тауарларды кредитке бөлшектеп сатып алу-сату, соның ішінде сатып алушының тауарларға төлемді бөліп-бөліп төлеу талабы қойылған шартына осы Кодекстің 441-бабы 3-тармағының екінші бөлігінде көзделген ережелер қолданылмауға тиіс.
4. Сатып алушы тауарға ақыны бөліп-бөліп төлеудің шартта белгіленген кезеңі шегінде тауарға кез келген уақытта толық төлем жасауға құқылы.
454-бап. Сапасы лайықты тауарды алмастыру
1. Сатып алушы азық-түлікке жатпайтын тауар өзіне берілген кезден бастап он төрт күн ішінде, егер сатушы неғұрлым ұзақ мерзім жарияламаған болса, сатып алынған тауарды сату орнында немесе сатушы хабарлаған өзге де орындарда бағасында айырма болған жағдайда сатушымен қажетті қайта есеп айырыса отырып, мөлшері, нысаны, ауқымы, пішіні, түсі, жинақтылығы және т.б . бойынша соған ұқсас тауармен алмастырып алуға құқылы.
2. Сатушыда алмастыруға қажетті тауар болмаған жағдайда сатып алушы сатып алынған тауарды сатушыға қайтарып беруге және оған төленген ақша сомасын алуға құқылы.
3. Егер тауар пайдаланылмай, оның тұтыну қасиеттері сақталса және оның сол сатушыдан сатып алынғандығына дәлелдер болса, сатып алушының тауарды алмастыру немесе оны қайтару туралы талаптары қанағаттандырылуға тиіс.
4. Осы бапта аталған негiздемелер бойынша алмастырылуға немесе қайтарылуға жатпайтын тауарлардың тiзбесi заңдарда белгiленген тәртiппен айқындалады.
455-бап. Сатып алушының оған сапасы лайықсыз тауар сатылған жағдайдағы құқықтары
1. Сапасы лайықсыз тауар сатылған сатып алушы, егер сатушы оның кемшiлiктерiн айтпаған болса, осы Кодекстiң 428-бабының 1-тармағында көзделген әрекеттердi жүзеге асыруға құқылы, бұл орайда сатып алушы сатушының талап етуi бойынша және оның есебiнен алынған сапасы лайықсыз тауарды қайтарып беруге тиiс.
2. Тауар үшiн төленген ақша сомасын сатып алушыға қайтарған кезде сатушының одан тауарды толық немесе iшiнара пайдаланудан, оның тауар түрiн жоғалтудан және т.б. болған тауар құнының төмендеген сомасын ұстап қалуға құқығы жоқ.
456-бап. Тауарды алмастыру, сатып алу бағасын кеміту және сапасы лайықсыз тауарды қайтару кезiнде баға айырмасының орнын толтыру
1. Сапасы лайықсыз тауарды шартқа сәйкес сапасы лайықты тауарға алмастыру кезiнде сатушының шартта белгiленген тауар бағасы мен тауарды алмастыратын немесе тауарды алмастыру туралы сот шешім шығарған кезде қолданылатын тауар бағасы арасындағы айырманың орны толтырылуын талап етуге құқығы жоқ.
2. Сапасы лайықсыз тауарды соған ұқсас, бiрақ көлемi, пiшiнi, сорты және т.б . жағынан өзгеше сапасы лайықты тауарға алмастырған кезде алмастырылатын тауардың айырбастаған кездегі бағасы мен сапасы лайықсыз тауардың орнына берілетін тауар бағасының арасындағы айырманың орны толтырылуға тиiс.
Егер сатушы сатып алушының талабын қанағаттандырмаса, бұл баға тауарды алмастыру туралы сот шешiм шығарған кезде белгiленедi.
3. Тауардың сатып алу бағасын соған орай кемiту туралы талап қойылған жағдайда бағасын арзандату жөнiнде талап қойылған кездегi, ал егер сатып алушының талаптары ерiктi түрде қанағаттандырылмаса, бағаны соған орай кемiту туралы сот шешiм шығарған кездегi тауар бағасы есепке алынады.
4. Сапасы лайықсыз тауарды сатушыға қайтарған кезде сатып алушы шартта белгiленген тауар бағасы мен сатып алушының талабын ерiктi түрде қанағаттандырған кездегi, ал егер талап ерiктi түрде қанағаттандырылмаса, сот шешiм шығарған кездегi тиістi тауар бағасы арасындағы айырманың орнын толтыруды талап етуге құқылы.
457-бап. Сатушының жауапкершілігі және мiндеттеменi заттай орындау
Сатушы бөлшектеп сатып алу-сату шарты бойынша мiндеттемесiн орындамаған жағдайда залалдарды өтеу мен тұрақсыздық айыбын төлеу сатушыны мiндеттемесiн заттай орындаудан босатпайды.
Параграф 3. Тауар жеткiзiлiмi
458-бап. Тауар жеткiзiлiмiнiң шарты
Кәсiпкер болып табылатын сатушы (тауар берушi) сатып алушыға өзі өндіретін немесе сатып алатын тауарларды кәсіпкерлік қызметке немесе жеке өзіне, отбасына, үй ішіне және сол сияқты өзге де пайдалануға байланысты емес өзге мақсаттарға пайдалану үшін келісілген мерзімде немесе мерзімдерде беруге міндеттенеді.
459-бап. Тауар жеткiзiлiмi шартын жасасу кезiндегi келiспеушiлiктердi реттеу
1. Тауар жеткiзілiмi шартын жасасу кезiнде тараптар арасында шарттың жекелеген талаптары бойынша келіспеушіліктер пайда болған жағдайда шарт жасасуды ұсынған және басқа тараптан осы талаптарды келісу туралы ұсыныс алған тарап осы ұсынысты алған күннен бастап отыз күн iшiнде, егер өзге мерзiм тараптармен келiсiлмеген болса, шарттың тиiстi талаптарын келiсу жөнiнде шаралар қолдануға не басқа тарапты оны жасасудан бас тарту туралы жазбаша түрде хабарландыруға тиiс.
2. Шарттың тиiстi талаптары бойынша ұсыныс алған, бiрақ тауар беру шартының талаптарын келiсу жөнiнде шара қолданбаған және осы баптың 1- тармағында көзделген мерзiмде шарт жасасудан бас тарту туралы екінші тарапқа хабарламаған тарап шарт талаптарын келісуден жалтару туғызған залалдарды өтеуге міндетті.
460-бап. Тауар жеткiзiлiмi шартының қолданылу мерзiмi
1. Тауар жеткiзiлiмi шарты бiр жылға, бiр жылдан астам мерзiмге (ұзақ мерзiмдi шарт) немесе тараптардың келiсiмiнде көзделген өзге де мерзiмге жасалуы мүмкiн.
Егер шартта оның қолданылу мерзiмi белгiленбесе және ол мiндеттеменiң мәнiнен туындамаса, шарт бiр жылға жасалған деп танылады.
2. Егер ұзақ мерзiмдi шартта берiлуге тиiс тауардың саны немесе өзге де шарт талаптары бiр жылға немесе неғұрлым ұзақ мерзiмге белгiленсе, шарттың қолданылу мерзiмi бiткенге дейiн кейiнгі кезеңдерге арналған тиiстi талаптар тараптардың келiсу тәртiбiмен белгiленуге тиiс. Шартта келiсу тәртiбi болмаған жағдайда шарт тиiсiнше бiр жылға немесе шарт талаптары келiсiлген мерзiмге жасалған болып танылады.
461-бап. Тауар жеткiзiлiмi кезеңдерi
1. Егер тараптар шарттың қолданылу мерзiмi iшiнде тауарлардың жекелеген топтармен жеткiзiлiмiн көздеген болса және онда жекелеген топтардың жеткізілімі мерзімдері (жеткізілім кезеңдерi) белгiленбесе, заң актiлерiнен, iскерлiк айналым дағдыларынан немесе міндеттеменің мәнінен өзгеше туындамаса, тауарлар ай сайын бiркелкi топтармен жеткiзiлiп отыруға тиiс.
2. Шартта тауар жеткiзiлiмi кезеңдерiн айқындаумен қатар, тауарлар жеткiзiлiмi (онкүндiк, тәулiктiк, сағаттық және т.б.) кестесi белгіленуі мүмкін.
3. Тауарлардың мерзiмiнен бұрын жеткiзiлiмi сатып алушының келiсуiмен жүргiзiлуi мүмкiн.
4. Мерзiмiнен бұрын берiлген және сатып алушы қабылдап алған тауарлар келесi кезеңде берiлуге тиiс тауарлар санының есебiне енгiзiледi.
462-бап. Тауарлар жеткiзiлiмiнiң тәртiбi
1. Тауар беруші сатып алушыға немесе шартта сатып алушы ретінде көрсетілген адамға шарт бойынша тауарды тиеп-жөнелту (беру) жолымен тауарлар жеткiзiлiмiн жүзеге асырады.
2. Шартта тауар берушіге тауарларды алушыларға тиеп-жөнелтуi туралы сатып алушының нұсқау (тиеп-жөнелтуге рұқсат қағаз) беру құқығы көзделген жағдайларда тауар берушi тауарларды тиеп-жөнелтуге рұқсат қағазда көрсетiлген алушыларға тиеп-жөнелтудi (берудi) жүзеге асырады.
3. Тиеп-жөнелтуге рұқсат қағаздың мазмұны және оны сатып алушының тауар берушiге жiберу мерзiмi шартта белгiленедi. Егер шартта тиеп-жөнелтуге рұқсат қағаз жiберу мерзiмi көзделмесе, ол жеткiзiлiм кезеңi басталғанға дейiн отыз күннен кешiктiрiлмей тауар берушiге жiберiлуге тиiс.
4. Егер шартта өзгеше көзделмесе, сатып алушының тиеп-жөнелтуге рұқсат қағазының белгiленген мерзiмде табыс етiлмеуi тауар берушiге шартты орындаудан бас тартуға құқық бередi.
463-бап. Тауарларды жеткiзiп беру
1. Тауар берушi тауарларды жеткiзiп берудi оларды шартта көзделген көлiкке тиеп және шартта белгiленген жағдайларда жөнелту жолымен жүзеге асырады.
2. Егер шартта тауарды жеткiзiп берудiң қандай көлiк түрiмен немесе қандай жағдайларда жүзеге асырылатындығы белгiленбесе, көлiк түрiн таңдау немесе тауарды жеткiзiп беру жағдайларын белгiлеу құқығын заң актiлерiнен, iскерлiк айналым дағдыларынан немесе міндеттеменің мәнінен өзгеше туындамайтындықтан тауар беруші иеленеді.
464-бап. Жетiспеген тауардың орнын толтыру
1. Тауар жеткiзiлiмiнiң жекелеген кезеңiнде тауардың жетiспеуiне жол берген тауар берушi жетiспейтiн тауарлар санының, егер шартта өзгеше көзделмесе, шарттың қолданылу мерзiмi шегiндегi келесi кезеңде (кезеңдерде) орнын толтыруға мiндеттi.
2. Ұзақ мерзiмдi шарт бойынша тауар берушiнiң жекелеген тауар жеткiзiлімi кезеңiнде кем берген тауарлар санының, егер шартта өзгеше көзделмесе, тауарлардың жетiспеуiне жол берiлген жыл iшiндегi келесi кезеңде (кезеңдерде) орны толтырылуға тиiс.
3. Тауар берушi шартта немесе сатып алушының тиеп-жөнелтуге рұқсат қағазында аталған бiрнеше алушыға тауарларды тиеп-жөнелткен жағдайда алушының біреуіне шартта немесе тиеп-жөнелтуге рұқсат қағазында көзделген санынан артық жіберілген тауарлар, егер шартта өзгеше көзделмесе, басқа алушылардағы жетiспеушiлiктердi өтеуге есептелмейдi және тауар берушi оның орнын толтыруға тиiс.
4. Сатып алушы, егер шартта өзгеше көзделмесе, тауар берушіге хабарлай отырып, жеткiзiлiм мерзімi өткен тауарды қабылдаудан бас тартуға құқылы. Тауар беруші хабар алғанға дейін берілген тауарды сатып алушы қабылдауға және оған ақы төлеуге мiндеттi.
465-бап. Жетiспеушiлiктердiң орнын толтыру кезiндегi тауарлардың түр түрі
1. Жеткіліксіз беріліп, орны толтырылуға тиісті тауарлардың түр-түрi тараптардың келiсiмi бойынша айқындалады. Келiсiм болмаған жағдайда тауар берушi жетiспеушiлiкке жол берiлген кезеңге арнап белгiленген түр-түрi бойынша жеткiлiксiз берiлген тауарлар санының орнын толтыруға мiндеттi.
2. Бiр атаудағы тауарлардың шартта көзделгенiнен көбiрек мөлшердегі жеткізілімі нақ сол түр-түріне кіретін басқа атаудағы тауарлардың жетпегенiн толтыруға есептелмейдi және сатып алушының алдын ала берген жазбаша келiсiмiмен жасалатын жағдайларды қоспағанда, оның орны толтырылуға тиiс.
466-бап. Сатып алушының тауарды қабылдауы
1. Сатып алушы (алушы) тауар жеткiзiлiмi шартына сәйкес берілген тауар қабылдауды қамтамасыз ететiн барлық қажеттi іс-әрекеттi жасауға мiндеттi.
2. Сатып алушы (алушы) қабылдаған тауар заң актiлерiнде, тауар жеткiзiлiмi шартында немесе iскерлiк айналым дағдыларында белгiленген мерзiмде қаралуға тиiс.
Сатып алушы (алушы) сол мерзiмде заң актiлерiнде, шартта немесе iскерлiк айналым дағдыларында белгiленген тәртiппен қабылданған тауардың саны мен сапасын тексеруге және тауардың байқалған сәйкессiздiктерi немесе кемшiлiктерi туралы тауар берушiге жазбаша түрде дереу хабарлауға мiндеттi.
3. Сатып алушы (алушы) көлiк ұйымынан жеткiзiлген тауарды алған жағдайда тауардың көлiк және жолдама құжаттарында көрсетiлген мәлiметтерге сәйкестiгiн тексеруге, сондай-ақ көлiк ұйымынан осы тауарды көлiк қызметiн реттейтiн заң актiлерi мен өзге де нормативтiк құқықтық актiлерде көзделген ережелердi сақтай отырып, қабылдауға мiндеттi.
467-бап. Сатып алушы қабылдамаған тауарды жауапкершiлiкпен сақтау
1. Сатып алушы (алушы) заң актiлерiне немесе тауар жеткiзiлiмi шартына сәйкес тауар берушi жiберген тауардан бас тартса, ол бұл тауардың сақталуын ( жауапкершiлiкпен сақтауды) қамтамасыз етуге және тауар берушiге дереу хабарлауға мiндеттi.
2. Тауар берушi сатып алушы (алушы) жауапкершiлiкпен сақтауға қабылдаған тауарды әкетуге немесе қисынды мерзiмде оған билiк етуге мiндеттi.
Егер тауар берушi осы мерзiмде тауарға билiк етпесе, сатып алушы тауарды сатуға немесе оны тауар берушiге қайтаруға құқылы.
3. Тауарды жауапкершiлiкпен сақтауға қабылдауға, тауарды сатуға немесе оны сатушыға қайтаруға байланысты сатып алушы (алушы) шеккен қажеттi шығындарды тауар берушi өтеуге тиiс.
Бұл орайда тауарды сатудан түскен сома сатып алушыға тиесілі сома шегеріле отырып тауар берушiге берiледi.
4. Сатып алушы заң актілерiнде немесе шартта белгiленбеген негiздерсiз тауар берушiден тауар қабылдамаған немесе оны қабылдаудан бас тартқан жағдайларда тауар берушi сатып алушыдан тауарға ақы төлеудi талап етуге құқылы.
468-бап. Тауарларды таңдау
1. Тауар жеткiзiлiмi шартында сатып алушының (алушының) тауарларды тауар берушiнiң орналасқан жерiнен алуы (тауарлар таңдауы) көзделуi мүмкiн.
2. Егер шартта таңдау мерзiмi көзделмесе, сатып алушының (алушының) тауарлар таңдауы тауар берушiнiң тауарлар дайын деген хабарын алғаннан кейін қисынды мерзімде жүргізілуге тиіс.
3. Тауар жеткiзiлiмi шартында сатып алушының (алушының) тауар берушi орналасқан жерде тауар таңдауы көзделген кезде, егер заң актiлерiнде өзгеше көзделмесе немесе мiндеттеменiң мәнiнен туындамаса, сатып алушы берiлетiн тауарларды қарап-көрудi олар берiлетiн жерде жүзеге асыруға мiндеттi.
4. Сатып алушының (алушының) шартта белгiленген тауар жеткізілімі мерзімінде, ал ол болмаған кезде - тауар берушінің тауарлардың дайын екендігі туралы хабарын алғаннан кейін қисынды мерзiмде тауарларды таңдамалы тауар берушiге шартты орындаудан бас тартуға немесе сатып алушыдан тауарларға ақы төлеудi талап етуге құқық бередi.
469-бап. Жеткiзiлетiн тауарлар үшiн есеп айырысу
1. Сатып алушы жеткiзiлетiн тауарларға шартта көзделген есеп айырысу тәртiбi мен нысандарын сақтай отырып ақы төлейдi. Егер тараптардың келiсiмiнде есеп айырысудың тәртiбi мен нысаны белгiленбесе, есеп айырысу төлем тапсырмалары арқылы жүзеге асырылады.
2. Егер шартта тауардың жиынтыққа енетiн жекелеген бөлiктерiмен жеткiзiлiмi көзделген болса, шартта өзгеше белгiленбегендiктен, сатып алушы тауарға ақы төлеудi жиынтыққа енетiн соңғы бөлiктi тиеп-жөнелткеннен (таңдап алғаннан) кейiн жүзеге асырады.
3. Егер шартта алушының (төлеушiнiң) тауарға ақы төлеудi жүзеге асыратыны көзделсе және соңғысы ақы төлеуден негізсіз бас тартса не шартта белгiленген мерзiмде тауарға ақы төлемесе, тауар берушi сатып алушыдан жеткiзiлген тауарға ақы төлеудi талап етуге құқылы.
470-бап. Ыдыс және буып-түю
1. Егер шартта өзгеше көзделмесе, сатып алушы (алушы) тауар берушiге заң актiлерiнде белгiленген тәртiп пен мерзiмде тауар келiп түскен көп айналымды ыдысты және буып-түю құралдарын қайтаруға мiндеттi.
2. Басқа да ыдыс пен буып-түю заттары тауар берушіге шартта көзделген жағдайларда ғана қайтарылуға тиiс.
471-бап. Сапасы лайықсыз тауар жеткiзiлімінiң салдары
1. Өзiне сапасы лайықсыз тауар жеткiзiлген сатып алушы (алушы) тауар берушiге осы Кодекстiң 428-бабында көзделген талаптарды қоюға құқылы, бұған жеткiзiлген тауардың кемшiлiктерi туралы сатып алушының хабарын алған тауар берушi жеткiзiлген тауарды кешiктiрмей сапасы лайықты тауармен алмастырған жағдайлар қосылмайды.
2. Өзiне берiлген тауарды бөлшек саудада сатуды жүзеге асыратын сатып алушы (алушы), егер тауар жеткiзiлiмi шартында өзгеше көзделмесе, тұтынушы қайтарған сапасы лайықсыз тауарды қисынды мерзiмде алмастыруды талап етуге құқылы.
472-бап. Жиынтықталмаған тауарлар жеткізілімінің салдары
1. Тауар жеткiзiлiмі шартының жағдайларын, заң актiлерiнiң талаптарын не әдетте жиынтықтауға қойылатын талаптарды бұза отырып, тауарлар берiлген сатып алушы (алушы) тауар берушiге осы Кодекстiң 433-бабында көзделген талаптарды қоюға құқылы, бұған жеткiзiлген тауарлардың жиынтықталмағандығы туралы сатып алушының хабарын алған тауар берушi
тауарларды кешiктiрмей толықтырған не оларды жиынтықталған тауарлармен алмастырған жағдай қосылмайды.
2. Тауарларды бөлшек саудада сатуды жүзеге асыратын сатып алушы (алушы ), егер тауар беру шартында өзгеше көзделмесе, тұтынушы қайтарған жиынтықталмаған тауарларды қисынды мерзімде жиынтықталған тауарлармен алмастыруды талап етуге құқылы.
473-бап. Тауар жеткiлiксiз берiлiп, тауардың кемшiлiктерiн жою туралы немесе тауарды толық жиынтықтау туралы талаптар орындалмаған жағдайдағы сатып алушының құқықтары
1. Егер тауар берушi тауарларды шартта көзделген мөлшерде бермесе не сатып алушының сапасы лайықсыз тауарды алмастыру туралы немесе белгiленген мерзiмде тауарды толық жиынтықтау туралы талаптарын орындамаса, сатып алушы оларды сатып алу жөнiндегi барлық қажеттi және қисынды шығындарды тауар берушiге жатқыза отырып, берiлмеген тауарларды басқа адамдардан сатып алуға құқылы.
Сатып алушының басқа адамдардың тауарлар сатып алуға жұмсаған шығындарын есептеу, тауар берушi оларды толық бермеген немесе тауарлардың кемшiлiктерiн жою туралы не тауарларды толық жиынтықтау туралы талаптар орындалмаған жағдайда, осы Кодекстiң 477-бабының 1-тармағында көзделген ережелер бойынша жүргiзiледi.
2. Сатып алушы (алушы) сапасы лайықсыз тауарларға және жиынтықталмаған тауарларға ақы төлеуден бас тартуға, ал егер мұндай тауарларға ақы төленiп қойған болса, төленген соманы тауарлардағы кемшiлiктер жойылғанға және тауарлар толық жиынтықталғанға дейін не олар алмастырылғанға дейін қайтаруды талап етуге құқылы.
474-бап. Тауарды жеткiлiксiз бергенi немесе тауар берудi кешiктiргенi үшiн тұрақсыздық айыбы
Тауарды жеткiлiксiз бергенi немесе берудi кешiктiргенi үшiн заң актiлерiнде немесе шартта белгiленген тұрақсыздық айыбы, егер заң актілерінде немесе шартта тұрақсыздық айыбын өндiрiп алудың өзгеше тәртібі белгіленбесе, шартта белгіленген күннен бастап, міндеттеменің нақты орындалған күніне дейін өндіріп алынуы мүмкін.
475-бап. Тауар берудiң бiрнеше шарттары бойынша бiртектес мiндеттемелердi өтеу
1. Тауар берушi сатып алушыға аттас тауарлар жеткiзудi тауар жеткiзiлiмiнiң бiрнеше шарттары бойынша жүзеге асыратын және жеткiзілген тауарлар саны тауар берушiнiң барлық шарттар бойынша мiндеттемелерiн өтеуге жетпейтін жағдайларда жеткiзiлген тауарлар тауар жеткiзiлiмiн жүзеге асыру кезiнде не жеткiзiлгеннен кейiн кешiктiрiлмей тауар берушi көрсеткен шарттың орындалу есебiне есептелуге тиiс.
2. Егер сатып алушы тауар жеткiзiлiмiнiң бiрнеше шарттары бойынша алған аттас тауарлар үшiн тауар берушіге ақы төлеген болса және төленген сома сатып алушының барлық шарттар бойынша міндеттемелерін өтеуге жетпесе, төленген сома тауарларға ақы төлеудi жүзеге асыру кезiнде не ақы төленгеннен кейiн кешiктiрiлмей сатып алушы көрсеткен шарттың орындалу есебiне есептелуге тиiс.
3. Егер тауар берушi немесе сатып алушы өздерiне осы баптың 1 және 2- тармақтарына сәйкес берiлген құқықтарды пайдаланбаса, міндеттеменiң орындалуы орындау мерзiмi ертерек басталған шарт бойынша міндеттемелерді өтеуге есептеледі. Егер бірнеше шарт бойынша міндеттемелерді орындау мерзімі бір мезгілде басталса, орындауға берілген мерзім барлық шарттар бойынша міндеттемелердің өтелуіне бара-бар түрде есептеледі.
476-бап. Шартты орындаудан бiржақты бас тарту
1. Тараптардың бiреуi (осы Кодекстiң 401-бабы 2-тармағының екiншi бөлiгi) шартты елеулi түрде бұзған жағдайда шартты (толық немесе iшiнара) орындаудан бiржақты бас тартуға немесе оны бiржақты өзгертуге жол берiледi.
2. Тауар берушiмен шарттың бұзылуы мына жағдайларда: 1) кемшiлiгi бар, сапасы лайықсыз тауар берiлiп, ол кемшiлiктердi сатып
алушы үшiн қолайлы мерзiмде жою мүмкiн болмағанда; 2) тауар беру мерзiмдерi бiрнеше рет бұзылғанда елеулi деп ұйғарылады. 3. Сатып алушымен шарттың бұзылуы мына жағдайларда: 1) тауарларға ақы төлеу мерзімдері бірнеше рет бұзылғанда; 2) бiрнеше рет тауарлар таңдалып алынбағанда елеулi деп ұйғарылады.
4. Тараптардың келiсiмiмен шартты орындаудан немесе оны бiржақты өзгертуден бiржақты бас тартудың өзге де негiздерi көзделуi мүмкiн.
5. Бiр тарап шартты өзгерту немесе оны орындаудан бiржақты бас тарту туралы екінші тараптан хабар алған кезден бастап, егер хабарда шартты бұзудың немесе өзгертудiң өзге мерзiмi көзделмесе не тараптардың келiсiмiнде белгiленбесе, тауар жеткiзiлiмi шарты бұзылған немесе өзгертiлген деп есептеледi.
477-бап. Шарт бұзылған жағдайда залалды есептеу
1. Егер сатушының мiндеттеменi бұзуы салдарынан шарт бұзылғаннан кейiн сатып алушы тауарды қисынды мерзiмде шартта көрсетілгенінің орнына басқа адамнан неғұрлым жоғары, бірақ қисынды бағамен сатып алса, ол сатушыға шартта белгіленген баға мен орнына жасалған мәміле бойынша белгіленген баға арасындағы айырма түрінде залалды өтеу туралы талап қоя алады.
2. Егер сатып алушының мiндеттеменi бұзуы салдарынан шарт бұзылғаннан кейiн сатушы тауарды қисынды мерзiмде басқа адамға шартта көзделгенiнен неғұрлым төмен, бiрақ қисынды бағамен сатса, сатушы сатып алушыға шартта белгіленген баға мен орнына жасалған мәміле бойынша белгіленген баға арасындағы айырма түрінде залалды өтеу туралы талап қоя алады.
3. Егер осы баптың 1 және 2-тармақтарында көзделген негiздер бойынша шарт бұзылғаннан кейiн бұзылған шарттың орнына мәмiле жасалмаса және осы тауардың ағымдағы бағасы болса, тарап шартта белгiленген баға мен шарт бұзылған кездегi ағымдағы баға арасындағы айырма түрiнде залалды өтеу туралы талап қоя алады.
Әдетте салыстырмалы мән-жайларда ұқсас тауарлар үшiн тауар беру жүзеге асырылуға тиiстi жерде алынатын баға ағымдағы баға деп танылады. Егер бұл жерде ағымдағы баға болмаса, басқа жерде қолданылған ағымдағы баға пайдаланылуы мүмкiн, ол тауарды тасымалдау жөнiндегi шығындар айырмасы ескерiлетiн қисынды айырбас бола алады.
4. Осы баптың 1 және 3-тармақтарында көзделген талаптарды қанағаттандыру мiндеттемесiн орындамаған тарапты, осы Кодекстiң 9-бабының 4 -тармағы негiзiнде, екiншi тарапқа келтiрiлген өзге залалды өтеуден босатпайды.
Параграф 4. Келiсiм-шарт жасасу
478-бап. Келiсiм-шарт жасасу шарты
1. Келiсiм-шарт жасасу шарты бойынша ауыл шаруашылық өнiмiн өндiрушi өзi өсiрген (өндiрген) ауыл шаруашылық өнiмiн - ұқсату немесе сату үшiн осындай өнiмдi сатып алуды жүзеге асыратын дайындаушы-тұлғаға беруге мiндеттенедi.
2. Осы параграфтың ережелерiмен реттелмеген келiсiм-шарт жасасу шарты бойынша қатынастарға тауар беру шарты туралы ережелер (осы Кодекстiң 458- 477-баптары) қолданылады.
479-бап. Дайындаушының мiндеттерi
1. Егер келiсiм-шарт жасасу шартында өзгеше көзделмесе, дайындаушы өндiрушiден ауыл шаруашылық өнiмiн оның тұрған жерiнде қабылдауға және тасып әкетудi қамтамасыз етуге мiндеттi.
2. Ауыл шаруашылық өнiмiн қабылдау дайындаушы орналасқан жерде немесе ол көрсеткен өзге орында жүзеге асырылатын жағдайда дайындаушының келiсiм-шарт жасасу шартының талаптарына сәйкес келетiн және дайындаушыға шартта келiсiлген мерзiмде берiлген ауыл шаруашылық өнiмiн қабылдаудан бас тартуға құқығы жоқ.
Дайындаушы өнiм сапасын стандарттарға сәйкес дәл анықтауды қамтамасыз етуге мiндеттi.
3. Келiсiм-шарт жасасу шартында ауыл шаруашылық өнiмiн ұқсатуды жүзеге асыратын дайындаушының өндiрушiге оның талап етуi бойынша ауыл шаруашылық өнiмiн ұқсатудан қалған қалдықтарды шартта белгiленген баға бойынша ақы төлете отырып қайтару мiндетi көзделуi мүмкiн.
480-бап. Ауыл шаруашылық өнiмiн өндiрушiнiң мiндеттерi
Ауыл шаруашылық өнiмiн өндiрушi дайындаушыға өсiрген (өндiрген) ауыл шаруашылық өнiмiн мөлшерi, сапасы мен түр-түрi келiсiм-шарт жасасу шартында көзделгендей етiп беруге мiндеттi.
481-бап. Ауыл шаруашылық өнiмiн өндiрушiнiң жауапкершiлiгi
Мiндеттеменi орындамаған немесе мiндеттеменi тиiстi түрде орындамаған ауыл шаруашылық өнiмiн өндiрушi өзiнiң кiнәсi болған жағдайда жауапты болады.
Параграф 5. Энергиямен жабдықтау
482-бап. Энергиямен жабдықтау шарты
1. Энергиямен жабдықтау шарты бойынша энергиямен жабдықтаушы ұйым абонентке (тұтынушыға) жалғанған желi арқылы энергия беруге мiндеттенедi, ал абонент алынған энергия үшiн ақы төлеуге, сондай-ақ оны тұтынудың шартта көзделген режимiн сақтауға, өзiнiң қарауындағы энергетика желiлерiн пайдалану қауіпсіздігін және энергияны тұтынуға байланысты пайдаланылатын аспаптар мен жабдықтардың ақаусыздығын қамтамасыз етуге мiндеттенедi.
2. Энергиямен жабдықтау шарты жария болып табылады (осы Кодекстiң 387- бабы).
3. Тараптар үшiн мiндеттi болып табылатын энергиямен жабдықтау шартының талаптары осы Кодекске және басқа да заң актiлерiне сәйкес белгiленедi.
483-бап. Энергиямен жабдықтау шартын жасасу және ұзарту
1. Абонентте Қазақстан Республикасының заңнамасында белгіленген тәртіппен энергия беруші ұйымның желілеріне жалғанған қажеттi жабдық болған кезде энергиямен жабдықтаушы ұйым онымен энергиямен жабдықтау шартын жасасады.
2. Абонент жалғанған желiге алғаш рет iс жүзiнде белгiленген тәртiппен қосылған кезден бастап шарт жасалған болып есептеледi.
Егер тараптардың келiсiмiнде өзгеше көзделмесе, мұндай шарт белгіленбеген мерзiмге жасалды деп есептеледi және осы Кодекстiң көзделген490-бабында негiздер бойынша өзгертiлуi немесе бұзылуы мүмкiн.
3. Мерзiм аяқталғаннан кейiн энергиямен жабдықтау шартын тоқтату немесе өзгерту туралы тараптардың бiреуiнiң өтiнiшi болмаған жағдайда ол шартта көзделген дәл сондай мерзiмге және нақ сондай талаптар бойынша ұзартылған болып есептеледі. Шартты жаңа мерзiмге ұзартқан кезде тараптардың келiсiмi бойынша оның талаптары өзгертiлуi мүмкiн.
4. Егер шарттың қолданылу мерзiмi аяқталғанға дейiн тараптардың бiрiнен жаңа шарт жасасу туралы ұсыныс енгiзiлсе, тараптардың қатынастары жаңа шарт жасалғанға дейiн бұрынғы жасалған шартпен реттеледi.
Ескерту. 483-бапқа өзгерістер енгізілді - ҚР 2003.01.08 N 376 Заңымен; 02.04.2019 № 241-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
484-бап. Энергия мөлшерi
1. Энергиямен жабдықтаушы ұйым шартта көзделген мөлшерде және тараптар келiскен энергия беру режимiн сақтай отырып, абонентке жалғанған желі арқылы энергия беруге мiндеттi. Энергиямен жабдықтаушы ұйым берген және абонент қабылдаған энергияның мөлшерi оның нақты тұтынылуы туралы есеп деректерiне сәйкес анықталады.
2. Энергия берудi шартта келiсiлмеген мөлшерде қамтамасыз етуге байланысты энергиямен жабдықтаушы ұйым шеккен шығындарды өтеген жағдайда шартта абоненттiң өзi алатын энергияның шартта белгіленген мөлшерін өзгертуге құқығы көзделуі мүмкін.
3. Энергиямен жабдықтау шарты бойынша энергияны тұрмыстық тұтыну үшiн пайдаланатын азамат абонент болған жағдайларда ол энергияны өзiне қажеттi мөлшерде пайдалануға құқылы. Энергиямен жабдықтаушы ұйым берген және абонент алған энергия мөлшері есептеу аспаптарының көрсеткіштерімен, ал олар болмаған немесе уақытша бұзылған кезде - есеп айырысу жолымен анықталады.
Ескерту. 484-бапқа өзгеріс енгізілді - ҚР 06.03.2013 N 81-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгiзiледi) Заңымен.
485-бап. Энергия мөлшерi туралы шарт талаптарын бұзудың зардабы
Егер энергиямен жабдықтаушы ұйым жалғанған желi арқылы абонентке энергияны шартта көзделгенінен аз мөлшерде берсе, заң актілерінде, шартта өзгеше көзделмесе немесе ол міндеттеменің мәнiнен туындамаса, осы Кодекстiң 419-бабында көзделген ережелер қолданылады.
486-бап. Энергияның сапасы
1. Энергиямен жабдықтаушы ұйым беретiн энергияның сапасы ұлттық стандарттарда және стандарттау жөнiндегi өзге де нормативтік құжаттарда белгіленген немесе шартта көзделген талаптарға сәйкес болуға тиiс.
2. Энергиямен жабдықтаушы ұйым энергияның сапасына қойылатын талаптарды бұзған жағдайда, егер заң актiлерiнде, шартта өзгеше көзделмесе немесе ол мiндеттеменiң мәнiнен туындамаса, осы Кодекстiң 491-бабында көзделген ережелер қолданылады.
Ескерту. 486-бапқа өзгеріс енгізілді - ҚР 2012.07.10 № 31-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
487-бап. Абоненттiң желiлердi, аспаптар мен жабдықтарды күтiп ұстау және пайдалану жөнiндегi мiндеттерi
1. Абонент өз пайдалануындағы энергетикалық желiлердiң, аспаптар мен жабдықтардың тиiстi техникалық жай-күйiн және қауiпсiздiгiн қамтамасыз етуге, энергияны тұтынудың белгiленген режимін сақтауға, сондай-ақ авариялар, өрт,
энергия есептеу аспаптарының ақаулы болуы және энергияны пайдалану кезiнде туындайтын өзге де кемшiлiктер туралы энергиямен жабдықтаушы ұйымға дереу хабарлауға мiндеттi.
2. Энергиямен жабдықтау шарты бойынша энергияны тұрмыстық тұтыну үшiн пайдаланатын азамат абонент болған жағдайларда энергетикалық желiлердiң, сондай-ақ энергия тұтынуды есептейтiн аспаптардың тиiстi техникалық жай-күйi мен қауiпсiздiгiн қамтамасыз ету мiндетi, егер заң актiлерiнде өзгеше көзделмесе, энергиямен жабдықтаушы ұйымға жүктеледi.
3. Энергетикалық желiлердiң, аспаптар мен жабдықтардың техникалық жай-күйiне және оларды пайдалануға қойылатын талаптар заңдармен белгiленедi .
4. Энергиямен жабдықтаушы ұйымдардың қызметкерлерiн абонент пайдалануындағы энергетикалық желiлердiң, аспаптар мен жабдықтардың техникалық жай-күйін және қауiпсiздiгiн бақылау үшiн аспаптарға жiберуге мiндеттi. Олардың сақталуын бақылауды жүзеге асыру тәртiбi заңдармен белгiленедi.
488-бап. Энергияға ақы төлеу
1. Энергияны коммерциялық есепке алудың автоматтандырылған жүйесін пайдалану жағдайларын қоспағанда, энергияға ақы төлеу есепке алу аспаптарының көрсеткіштерiне сәйкес анықталатын, абонент iс жүзiнде алған энергия мөлшерi үшiн, ал олар болмаған немесе уақытша бұзылған кезде есептеу арқылы жүргізіледі.
2. Энергия үшiн есеп айырысу тәртібі заңдармен немесе тараптардың келiсiмiмен белгiленедi.
Ескерту. 488-бапқа өзгеріс енгізілді - ҚР 2012.07.04 № 25-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
489-бап. Абоненттiң энергияны басқа тұлғаға беруi
1. Абонент жалғанған желi арқылы энергиямен жабдықтаушы ұйымнан өзi алған энергияны басқа тұлғаға (қосалқы абонентке) энергиямен жабдықтайтын ұйымның келiсуiмен ғана бере алады.
2. Абоненттiң қосалқы абонентке энергия беру жөнiндегi шартына, егер заң актілерінде немесе шартта өзгеше көзделмесе, осы параграфтағы ережелер қолданылады.
3. Қосалқы абонентке энергия беру кезiнде, егер заң актiлерiнде өзгеше белгiленбесе, энергиямен жабдықтаушы ұйымның алдында абонент жауапты болады.
490-бап. Шартты өзгерту және бұзу
1. Абоненттiң энергетикалық қондырғыларының мемлекеттiк энергетикалық қадағалау органы куәландырған қанағаттанғысыз жай-күйi авария қаупiн туғызатын немесе азаматтардың өмiрi мен қауiпсiздiгiне қатер төндiретiн жағдайды қоспағанда, энергияны үзiлiспен беруге, тоқтатуға немесе шектеп беруге тараптардың келiсiмi бойынша жол берiледi. Энергиямен жабдықтаушы ұйым абонентке энергияны үзiлiспен беру, тоқтату немесе шектеп беру туралы алдын ала ескертуге тиiс.
2. Энергиямен жабдықтау ұйымы жүйесiнде аварияның алдын алу немесе оны жою жөнiнде шұғыл шаралар қолдану қажет болған жағдайда абоненттiң келiсуiнсiз және оған ескертпей, бiрақ оған дереу хабарлай отырып энергияны үзіліспен беруге, тоқтатуға немесе шектеп беруге жол беріледі.
3. Заңдарда үздiксiз циклды өндiрiс үшiн энергия берудегi үзіліске оның берiлуiн тоқтатуға немесе шектеуге жол берiлмейдi және заңдармен реттеледi.
4. Энергиямен жабдықтау шарты бойынша энергияны тұрмыстық тұтыну үшiн пайдаланушы азамат абонент болған жағдайларда, бұл туралы ол энергиямен жабдықтаушы ұйымға хабарлап, пайдаланған энергия ақысын толық төлеген кезде шарттан біржақты тәртіппен бас тартуға құқылы.
5. Энергиямен жабдықтау шарты бойынша энергияны тұрмыстық тұтынуға пайдаланушы азамат абонент болған жағдайларда энергиямен жабдықтаушы ұйым шартты орындауды тоқтатқанға дейiн бiр айдан кешiктiрмей абонентке ескерткен жағдайда өзi пайдаланған энергияға абоненттiң ақы төлемеуiне байланысты шарттың орындалуын бiр жақты тоқтатуға құқылы.
491-бап. Энергиямен жабдықтау шарты бойынша жауаптылық
1. Энергиямен жабдықтау шарты бойынша мiндеттемелер орындалмаған немесе тиiсiнше орындалмаған жағдайларда энергиямен жабдықтаушы ұйым мен абонент осыдан келтiрiлген нақты залалды өтеуге мiндеттi (осы Кодекстiң 9- бабының 4-тармағы).
2. Егер заңдар негiзiнде жүзеге асырылған энергия тұтыну режимiн реттеу нәтижесiнде абонентке энергия беруде үзiлiс жасалған болса, энергиямен жабдықтаушы ұйым өзi кiнәлi болған жағдайда шарт мiндеттемелерiнiң орындалмағаны немесе тиiсiнше орындалмағаны үшін жауапты болады.
492-бап. Энергиямен жабдықтау шартының ережелерiн жалғанған желi арқылы жабдықтау жөнiндегi өзге де қатынастарға қолдану
1. Жалғанған желi арқылы жылу энергиясымен жабдықтау жөнiндегi қатынастарға, егер заңдарда өзгеше белгiленбесе, осы параграфтың ережелерi қолданылады.
2. Жалғанған желi арқылы газбен, мұнаймен және мұнай өнiмдерiмен, сумен, басқа да тауарлармен жабдықтау жөнiндегi қатынастарға, егер заңдарда, шартта өзгеше белгiленбесе немесе ол мiндеттемелер мәнiнен туындамаса, осы параграфтың ережелерi қолданылады.
Параграф 6. Кәсiпорынды сату
493-бап. Кәсiпорынды сату шарты
1. Кәсiпорынды сату шарты бойынша сатушы тұтас алғанда кәсiпорынды мүлiктiк кешен ретiнде сатып алушының меншiгiне (осы Кодекстiң 119-бабы) беруге мiндеттенедi, бұған сатушы басқа тұлғаларға беруге құқығы болмайтын құқықтар мен мiндеттер қосылмайды.
2. Кәсiпорынның қызметкерлерi жөнiндегi құқықтар мен мiндеттер Қазақстан Республикасының еңбек заңнамасында көзделген тәртiппен сатушыдан сатып алушыға ауысады.
3. Фирмалық атауларды, тауар белгiлерiн, қызмет көрсету белгiлерiн және сатушыны дараландыратын басқа да құралдар мен оның өнiмдерiн, оның атқаратын жұмысын немесе көрсететiн қызметiн пайдалану құқықтары, сондай-ақ лицензия негiзiнде дараландыратын құралдарды пайдалану жөнiнде сатушыға тиесiлi құқықтар, егер шартта өзгеше көзделмесе, сатып алушыға ауысады.
4. Тиiстi қызметпен айналысуға арнайы рұқсат (лицензия) беру негiзiнде алынған құқықтар, егер заң актiлерiнде өзгеше белгіленбесе, кәсіпорынды сатып алушыға ауыспауға тиіс. Шарт бойынша берілетін кәсіпорынның құрамына оның арнайы рұқсаты (лицензиясы) болмауынан сатып алушы орындай алмайтын мiндеттемелердiң енгiзiлуi сатып алушыны кредит берушiлер алдындағы тиісті міндеттемелерден босатпайды. Міндеттемелерді орындамағаны үшін сатушы мен сатып алушы кредит берушілер алдында бірдей жауап береді.
5. Кәсіпорын бірыңғай мүліктік кешен болған жағдайда, мемлекеттік кәсіпорынды сату ерекшеліктері Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде айқындалады.
Ескерту. 493-бапқа өзгерту енгізілді - ҚР 2007.05.15 N 253, 2011.03.01 N 414- IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі)
Заңдарымен.
494-бап. Кәсіпорынды сату шартының нысаны
Ескерту. 494-баптың тақырыбы жаңа редакцияда - ҚР 2011.03.25 (N 421-IV алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Кәсiпорынды сату шарты, осы Кодекстiң 495-бабының 2-тармағында аталған құжаттарды мiндеттi түрде қоса отырып, тараптардың қолы қойылған бiр құжат дайындау жолымен жазбаша түрде жасалады.
2. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
Ескерту. 494-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
495-бап. Сатуға жататын кәсiпорынның құрамын белгiлеу және құнын бағалау
1. Сатуға жататын кәсiпорынның құрамы мен құны, егер заң актiлерiнде өзгеше көзделмесе, тараптардың келiсiмiмен айқындалады.
2. Шартқа қол қойылғанға дейiн тараптар: түгендеу актiсiн, бухгалтерлiк балансты, кәсiпорынның құрамы мен құны туралы аудиторлық ұйымның аудиторлық есебiн, сондай-ақ кредит берушiлердi, олар қойған талаптардың сипатын, мөлшерi мен мерзiмдерiн көрсете отырып, кәсiпорынның құрамына енгiзiлетiн барлық борыштың (мiндеттемелердiң) тiзбесiн жасап, қарауға тиiс.
Аталған құжаттарда көрсетiлген мүлiк, құқықтар мен мiндеттер, егер осы Кодекстiң 493-бабынан өзгеше туындамайтын болса және шартта өзгеше белгiленбесе, сатушыдан сатып алушыға ауысуға тиiс.
Ескерту. 495-бапқа өзгерту енгізілді - Қазақстан Республикасының 2006.05.05 . N 139 Заңымен.
496-бап. Кредит берушiлердiң кәсiпорынды сату кезiндегi құқықтары
1. Сатушы сатылатын кәсiпорынның құрамына енгiзiлген мiндеттемелер жөнiнде кәсiпорын сатып алушыға берiлгенге дейiн оны сату туралы кредит берушiлерге жазбаша түрде хабарлауға тиiс.
2. Борышты аударуға өз келiсiмiн беру туралы сатушыға жазбаша хабарламаған кредит берушi кәсiпорынның сатылатындығы туралы хабар алған күннен бастап үш ай iшiнде мiндеттемелердi тоқтатуды немесе мерзiмiнен бұрын орындауды және сатушының осыдан келген залалдарды өтеуiн не кәсiпорынды сату шартын толық немесе оның тиiстi бөлiгiн жарамсыз деп тануды талап етуге құқылы.
3. Осы баптың 1-тармағында көзделген тәртiп бойынша кәсiпорынды сату туралы хабардар етiлмеген кредит берушi сатушының кәсiпорынды сатып алушыға бергендiгi туралы өзi бiлген немесе бiлуге тиiс болған күннен бастап бiр жыл iшiнде, осы баптың 2-тармағында көзделген талаптардың қанағаттандырылуы туралы талап қоя алады.
4. Кәсiпорын сатып алушыға берiлгеннен кейiн кредит берушiнiң келiсуiнсiз сатып алушыға аударылып, берiлген кәсiпорынның құрамына енгiзiлген борыш үшiн сатушы мен сатып алушы бiрдей жауап бередi.
497-бап. Кәсiпорынды беру
1. Сатушының кәсiпорынды сатып алушыға беруi өткiзу актiсi бойынша жүзеге асырылады, онда кәсiпорынның құрамы жөнiндегi және кәсiпорынды сату туралы кредит берушiлерге хабарлау жөнiндегi деректер, сондай-ақ берiлген мүлiктен табылған кемшiлiктер туралы мәлiметтер және оны жоғалтып алуға байланысты беру мiндеттерiн орындау мүмкiн болмайтын мүлiктердiң тiзбесi көрсетiледi.
2. Өткiзу актiсiн жасауды және оны қол қоюға табыс етудi қоса алғанда, кәсiпорынды беруге дайындау сатушының мiндетi болып табылады, егер шартта өзгеше көзделмесе, соның есебiнен жүзеге асырылады.
3. Өткiзу актiсiнде екi тарап қол қойған күннен бастап кәсiпорын сатып алушыға берiлген деп есептеледi.
Сол кезден бастап кәсiпорын құрамында берiлген мүлiктiң кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi сатып алушыға ауысады.
498-бап. Кәсіпорынға құқықтардың ауысуы
Ескерту. 498-баптың тақырыбы жаңа редакцияда - ҚР 2011.03.25 (N 421-IV алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Мемлекеттік тіркелуге жататын кәсіпорынның құрамына кіретін мүлікке құқық тіркелген кезден бастап сатып алушыға ауысады. Қалған мүлікке құқықтар екі тарап табыстау актісіне қол қойған кезден бастап ауысады.
2. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
3. Шартта сатып алушыға берiлген кәсiпорынға меншiк құқығы кәсiпорынға ақы төленгенше немесе өзге де мән-жайлар туғанға дейiн сатушының өзiнде қалдыру көзделген жағдайларда сатып алушы меншiк құқығы өзiне ауысқанға дейiн, берiлген кәсiпорынның құрамына кiретiн мүлiктер мен құқықтарды кәсiпорынның қызметiн мүлiктiк кешен ретiнде қамтамасыз ету үшiн қаншалықты қажет болса, соншалықты дәрежеде пайдалануға құқылы.
Ескерту. 498-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
499-бап. Кемшiлiктерi бар кәсiпорынды беру мен қабылдаудың салдары
1. Кәсiпорынды өткiзу актiсi бойынша құрамы шартта көзделгенге сәйкес келмейтiн кәсiпорынды сатушының беру және сатып алушының қабылдау салдары, соның iшiнде берiлген мүлiктердiң сапасына қатысты салдары, егер шарттан өзгеше туындамаса және ол осы баптың 2-4-тармақтарында өзгеше көзделмесе, осы Кодекстiң 413-415, 419, 422, 428, 432-баптарында көзделген ережелер негiзiнде айқындалады.
2. Кәсiпорынның анықталған кемшiлiктерi және жоғалған мүлiк туралы мәлiметтер көрсетiлген өткiзу актiсi бойынша кәсiпорын берiлген және қабылданған жағдайларда (осы Кодекстiң 497-бабының 1-тармағы), егер мұндай жағдайларда өзге талаптар қою құқығы шартта көзделмесе, сатып алушы кәсiпорынның сатып алу бағасын тиiсiнше кемiтудi талап етуге құқылы.
3. Кәсiпорынның құрамында сатушының шартта немесе өткiзу актiсiнде көрсетiлмеген борышы (мiндеттемелерi) өзiне берiлген жағдайда, егер сатушы шарт жасасу және кәсiпорынды беру кезiнде осы борыш (мiндеттемелер) туралы сатып алушының бiлгендiгiн дәлелдей алмаса, сатып алушы сатып алу бағасын кемiтудi талап етуге құқылы.
4. Сатушы берiлген кәсiпорынның құрамындағы мүлiктердiң жетпейтiндiгi немесе берiлуге тиiс мүлiктiң жекелеген түрлерiнiң жоқ екендiгi туралы сатып алушыдан хабар алған жағдайда тиiсiнше сапалы емес мүлiктi кешiктiрмей алмастыруға немесе сатып алушыға жетпейтiн мүлiктi беруге тиiс.
5. Егер сатушы жауап беретiн кемшiлiктердiң салдарынан кәсiпорын сату шартында аталған мақсаттарға жарамсыз болып шықса және сатушы ол кемшiлiктердi осы Кодекске, заң актiлерiне немесе шартқа сәйкес белгiленген жағдайларда, тәртiп пен мерзiмде жоймаған болса, не кемшiлiктердi жою мүмкiн
болмаса, сатып алушы сот тәртiбiмен кәсiпорынды сату шартын бұзуды немесе өзгертудi және тараптардың шарт бойынша орындаған нәрсесiн қайтарып берудi талап етуге құқылы.
500-бап. Кәсiпорынды сату шартына мәмiлелердiң жарамсыздық салдары туралы және шартты бұзу мен өзгерту туралы ережелердi қолдану
Осы Кодекстiң мәмiлелердiң жарамсыздық салдары туралы және сатып алу-сату шартын бұзу мен өзгерту туралы, шарт бойынша бiр тараптан немесе екi тараптан алынғандарды заттай қайтаруды немесе өндiрiп алуды көздейтiн ережелерi, егер мұндай салдар сатушы мен сатып алушыға кредит берушiлердiң, басқа да адамдардың құқықтарын және заң актiлерiмен қорғалатын мүдделерiн елеулi түрде бұзбайтын болса және қоғамдық мүдделерге қайшы келмесе, кәсiпорынды сату шартына қолданылады.
26-тарау. Айырбас
501-бап. Айырбас шарты
1. Айырбас шарты бойынша тараптардың әрқайсысы шаруашылық жүргiзудi, оралымды басқаруды басқа тараптың меншiгiне бiр тауарды екiншiсiне айырбасқа беруге мiндеттенедi.
2. Айырбас шартына тиiсiнше сатып алу-сату шартының ережелерi қолданылады, өйткенi бұл осы тараудың ережелерiне және айырбас мәнiне қайшы келмейдi. Бұл орайда тараптардың әрқайсысы тауарды беруге мiндеттенетiн сатушы деп және айырбастап алуға мiндеттенетiн сатып алушы деп танылады.
3. Осы тарауда көзделген ережелер, егер заң актiлерiнде өзгеше көзделмесе және ол тиiстi мiндеттемелер мәнiнен туындамаса, құқықтарды айырбастауға ( жұмыстар, қызмет көрсетулер) қолданылады.
502-бап. Айырбас шарты бойынша баға мен шығындар
1. Егер шарттан өзгеше туындамаса, айырбастауға жататын тауарлар бiр-бiрiне тең деп ұйғарылады, ал оларды беру мен қабылдап алу жөнiндегi шығындарды әрбiр жағдайда тиiстi мiндет жүктелетiн тарап жүзеге асырады.
2. Шартқа сәйкес айырбасталатын тауарлар бiр-бiрiне тең емес деп танылған жағдайда бағасы айырбастауға берiлетiн тауардың бағасынан кем тауарды беруге
мiндеттенген тарап, егер шартта өзгеше тәртiп көзделмесе, тауар беру мiндетiн орындағанға дейiн немесе одан кейiн бағадағы айырманы тiкелей өзi төлеуге тиiс .
503-бап. Айырбас шарты бойынша өзара тауар беру мiндеттемелерiн орындау
Шартқа сәйкес айырбасталатын тауарларды беру мерзiмдерi тұспа-тұс келмейтiн жағдайларда тауар беруге тиiстi тараптың тауарды беру мiндеттемелерiн басқа тарап тауар берген соң орындауына өзара мiндеттемелердi орындау туралы ережелер қолданылады (осы Кодекстiң 284-бабы).
504-бап. Айырбасталатын тауарларға меншiк құқығының ауысуы
Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, айырбасталатын тауарларға меншiк құқығы айырбас шарты бойынша сатып алушы болатын тараптарға тараптардың әрқайсысы тиiстi тауарларды беру мiндеттемелерiн орындағаннан кейiн бiр мезгiлде ауысады.
505-бап. Айырбас шарты бойынша сатып алынған тауарды алып қойғаны үшiн жауапкершiлiк
Айырбас шарты бойынша сатып алынған тауарды үшiншi тұлғалар алып қойған тарап осы Кодекстiң 414-бабында көзделген негiздемелер болған кезде басқа тараптан оның айырбасқа алған тауарын, ал тауарды заттай алу мүмкiн болмаған жағдайда оның құнын қайтаруды талап етуге құқылы.
27-тарау. Сыйға тарту
506-бап. Сыйға тарту шарты
1. Сыйға тарту шарты бойынша бiр тарап (сыйға тартушы) басқа тараптың ( сыйды алушының) меншiгiне затты не өзiне немесе үшiншi тұлғаға мүлiктiк құқықты (талапты) тегiн бередi немесе беруге мiндеттенедi не оны үшiншi тұлғаның алдындағы мүлiктiк мiндеттен босатады немесе босатуға мiндеттенедi.
Затты немесе құқықты қарсы беру не қарсы мiндеттеме болған кезде сыйға тарту шарты маңызсыз болып саналады. Мұндай шартқа осы Кодекстiң 160-
2-тармағында көзделген қағидалар қолданылады.бабының 2. Әлдекiмге затты немесе мүлiктiк құқықты тегiн беруге уәде ету не
әлдекiмдi мүлiктiк мiндеттен (сыйға тартуға уәде беруден) босату сыйға тарту шарты болып танылады және егер уәде тиiстi нысанда (508-баптың 2-тармағы)
жасалса және алдағы уақытта нақты тұлғаға затты немесе құқықты тегiн беру не оны мүлiктiк мiндеттен босатуға айқын ниет бiлдiрiлген болса, уәде берушiнi босатпай тастайды.
Нақты сыйға тарту затын зат және құқық түрiнде көрсетпей немесе мiндеттен босатпай өзiнiң барлық мүлкiн немесе өзiнiң барлық мүлкiнiң бiр бөлiгiн сыйға тартуға уәде беру маңызсыз болады.
3. Сыйға тартушы қайтыс болғаннан кейін сый алушыға сый беруді көздейтін шарт маңызсыз болады.
Мұндай сыйға тарту түрiне осы Кодекстiң мұрагерлiк туралы ережелерi қолданылады.
Ескерту. 506-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
507-бап. Сый алушының сыйды алудан бас тартуы
1. Сый алушы өзiне сый берiлгенге дейiн кез келген уақытта одан бас тартуға құқылы. Бұл жағдайда сыйға тарту шарты бұзылған деп есептеледi.
2. Егер сыйға тарту шарты жазбаша түрде жасалса, сыйдан бас тарту да жазбаша түрде жасалуға тиiс. Сыйға тарту шарты тiркелген жағдайда сыйды алудан бас тарту да мемлекеттiк тiркелуге тиiс.
3. Егер сыйға тарту шарты жазбаша түрде жасалған болса, сый берушi сый алушыдан сыйды алудан бас тартқаны үшiн өзiне келтiрiлген нақты зиянды өтеуiн талап етуге құқылы.
Ескерту. 507-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
508-бап. Сыйға тарту шартының нысаны
1. Сый алушыға сыймен қоса сыйға тарту осы баптың 2 және 3- тармақтарында көзделген жағдайларды қоспағанда, ауызша жасалуы мүмкiн. Сыйды беру оны тапсыру, символдық беру (кiлттердi табыс ету және т.б.) не құқық белгiлейтiн құжаттарды тапсыру арқылы жүзеге асырылады.
2. Қозғалмайтын мүлiктi сыйға тарту шарты: 1) заңды тұлға сый берушi болған және сыйдың құны он айлық есептiк
көрсеткiштен асатын; 2) шартта алдағы уақытта сыйға тартуға уәде етiлген жағдайларда жазбаша
түрде жасалуға тиiс.
Ауызша жасалған сыйға тарту шарты осы тармақта көзделген жағдайларда маңызсыз болады.
3. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
Ескерту. 508-бапқа өзгерістер енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
509-бап. Сыйға тартуға тыйым салу
Құны заң актiлерiнде белгiленген он айлық есептiк көрсеткiш мөлшерiнен аспайтын әдеттегi сыйлықтарды қоспағанда:
1) жас балалар мен iс-әрекетке қабiлетсiз деп танылған азаматтардың атынан олардың заңды өкiлдерiнiң;
2) емдеу, тәрбиелеу мекемелерiнiң, әлеуметтiк қорғау мекемелерiнiң және сол секiлдi мекемелердiң қызметкерлерiне олардың емдеуiндегi, асырауындағы не тәрбиесiндегi азаматтардың және осы азаматтардың зайыптары мен туыстарының;
3) мемлекеттік қызметшілерге, сондай-ақ олардың отбасы мүшелеріне мемлекеттік қызметшілердің лауазымдық жағдайына байланысты немесе олардың қызметтік міндеттерін атқаруына байланысты сый тартуға жол берілмейді.
Ескерту. 509-бапқа өзгерту енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
510-бап. Сыйға тартуды шектеу
1. Заты шаруашылық жүргiзу немесе оралымды басқару құқығына жататын заңды тұлға, егер заң актiлерiнде өзгеше көзделмесе, меншiк иесiнiң келiсiмiмен өзiнiң затын сыйлауға құқылы. Бұл шектеу құны заң актiлерiнде белгiленген он айлық есептiк көрсеткiш мөлшерiнен аспайтын әдеттегi сыйлықтарға қолданылмайды.
2. Бiрлескен ортақ меншiктегi мүлiктi сыйға тартуға бiрлескен меншiктiң барлық қатысушыларының келiсiмi бойынша осы Кодекстiң 220-бабында көзделген ережелердi сақтай отырып жол берiледi.
3. Сый берушiге тиесiлi талап құқықтарын үшiншi тұлғаға сыйға тарту осы Кодекстiң 339-343, 345, 346-баптарында көзделген ережелер сақтала отырып жүзеге асырылады.
4. Үшiншi тұлға алдында сый алушының мiндеттерiн орындау арқылы сыйға тарту осы Кодекстiң 276-бабының 1-тармағында көзделген ережелер сақтала отырып жүзеге асырылады.
Үшiншi тұлға алдында сый берушiнiң сый алушы борышын өзiне аудару арқылы сыйға тартуы осы Кодекстiң 348-бабында көзделген ережелер сақтала отырып жүзеге асырылады.
5. Өкiлдiң сыйға тартуға жасаған сенiмхатында сый алушы аталмаса және сыйға тартатын зат көрсетiлмесе, ол маңызсыз болады.
Ескерту. 510-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
511-бап. Сыйға тарту шартын орындаудан бас тарту
1. Егер шарт жасалғаннан кейiн сый берушiнiң мүлiктiк немесе отбасылық жағдайы, не денсаулығы шартты жаңа жағдайларда орындау оның тұрмыс деңгейiнiң едәуiр нашарлауына әкеп соқтыратындай болып өзгерсе, сыйға тартушы келешекте сый алушыға зат немесе құқық беру уәдесiн немесе сый алушыны мүлiктiк мiндеттен босату уәдесiн қамтитын шартты орындаудан бас тартуға құқылы.
2. Сыйға тартушы келешекте сый алушыға зат не құқық беру уәдесiн, не сый алушыны оған сыйға тартуды өзгерту құқығын берушi негiздемелер бойынша мүлiктiк мiндеттемеден босату уәдесiн қамтитын шартты орындаудан бас тартуға құқылы (осы Кодекстiң 512-бабының 1-тармағы).
3. Осы баптың 1 және 2-тармақтарында көзделген негiздемелер бойынша сыйға тартушының сыйға тарту шартын орындаудан бас тартуы сый алушыға залалдарды өтеудi талап ету құқығын бермейдi.
512-бап. Сыйға тартудың күшiн жою
1. Егер сый алушы сыйға тартушының өмiрiне, оның отбасы мүшелерiнiң немесе жақын туыстарының бiреуiне қастандық жасаса не сый берушiге қасақана дене жарақатын салса, сыйға тартушы сыйға тартудың күшін жоюға құқылы.
Сый алушы сыйға тартушыны қасақана өлтiрген жағдайда сотта сыйға тартудың күшiн жоюды талап етуге сыйға тартушы мұрагерлерiнiң құқығы болады.
2. Егер сый алушының сыйға тартушы үшiн үлкен мүлiктiк емес құндылық болып саналатын сыйланған затты ұстауы оның бiржола жойылу қаупiн тудырса, сыйға тартушы сыйға тартудың күшiн сот тәртiбiмен жоюды талап етуге құқылы.
3. Сот мүдделi тұлғаның талап етуi бойынша, жеке кәсiпкердiң немесе заңды тұлғаның оның кәсiпкерлiк қызметiне байланысты Қазақстан Республикасының оңалту және банкроттық туралы заңнамалық актісінің ережелерiн бұза отырып жасаған сыйға тартуының күшiн мұндай тұлғаны банкрот деп жариялаудың алдындағы бiр жыл iшiнде жоя алады.
4. Сыйға тарту шартында, сый берушi сый алушыдан ұзақ өмiр сүрген жағдайда, сыйға тартудың күшiн жою құқығы ескертiлуi мүмкін.
5. Сыйға тартудың күшi жойылған жағдайда, егер сыйланған зат сыйға тартудың күшін жою туралы хабарлама келіп түскен кезге қарай сол күйiнде сақталса, сый алушы оны қайтаруға не сыйланған зат иеліктен шығарылған жағдайда, оның құнын сыйға тартудың күшін жою туралы хабарлама келіп түскеннен кейін нарықтық бағалар бойынша өтеуге мiндеттi.
Ескерту. 512-бапқа өзгерістер енгізілді - ҚР 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
513-бап. Сыйға тарту шартын орындаудан бас тарту және сыйға тартудың күшiн жою мүмкiн болмайтын жағдайлар
Сыйға тарту шартын орындаудан бас тарту туралы (осы Кодекстiң 511-бабы) және сыйға тартудың күшiн жою туралы (осы Кодекстiң 512-бабы) ережелер құны заң актiлерiнде белгiленген он айлық есептiк көрсеткiштен аспайтын сыйлықтарға қолданылмайды (осы Кодекстiң 510-бабының 1-тармағы).
514-бап. Сыйланған заттың кемшiлiктерi салдарынан зиян келтiру зардабы
Сыйланған заттың кемшiлiктерi салдарынан сый алушы азаматтың өмiрiне, денсаулығына немесе мүлкіне келтiрiлген зиянды, егер бұл кемшiлiктер сый алушыға затты беруден бұрын пайда болғаны дәлелденсе және анық кемшiлiктер қатарына жатпаса, ал сыйға тартушы ол жөнiнде бiле тұра сый алушыға ескертпесе, осы Кодекстiң 47-тарауында көзделген ережелерге сәйкес сыйға тартушы өтеуге тиiс.
515-бап. Сыйға тартуға уәде беру кезiндегi құқық мирасқорлығы
1. Сыйға тарту шарты бойынша сыйға тартуға уәде берiлген сый алушының құқықтары, егер сыйға тарту шартында өзгеше көзделмесе, оның мұрагерлерiне ( құқық мирасқорларына) ауыспайды.
2. Сыйға тартуға уәде берген сыйға тартушының мiндеттерi, егер сыйға тарту шартында өзгеше көзделмесе, оның мұрагерлерiне (құқық мирасқорларына) ауысады.
516-бап. Қайырмалдық
1. Жалпы пайдалану мақсатында затты немесе құқықты сыйға тарту қайырмалдық деп танылады.
Қайырмалдық азаматтарға, емдеу, тәрбие беру мекемелерiне, әлеуметтiк қорғау мекемелерiне және басқа да сол сияқты мекемелерге, қайырымдылық, ғылыми және оқу мекемелерiне, қорларға, мұражайлар мен басқа да мәдениет мекемелерiне, қоғамдық және дiни бiрлестiктерге, сондай-ақ мемлекетке және осы Кодекстiң 111 және 112-баптарында аталған азаматтық құқықтың басқа да субъектiлерiне жасалуы мүмкiн.
2. Қайырмалдықты алуға ешкiмнiң рұқсаты немесе келiсiмi талап етiлмейдi. 3. Азаматқа мүлiк қайырмалдыққа берілуге тиiс, ал заңды тұлғаларға
қайырмалдық етушi осы мүлiктi белгiлi бiр мақсатқа пайдалануды ескертiп беруi мүмкiн. Мұндай талап болмаған жағдайда азаматқа мүлiктi қайырмалдыққа беру жай сыйға тарту болып есептеледi, ал басқа жағдайларда қайырмалдыққа берiлген мүлiктi сый алушы мүлiктi мақсатына сай пайдаланады.
Пайдалану үшiн белгiлi бiр мақсат белгiленген қайырмалдықты алушы заңды тұлға қайырмалдыққа берiлген мүлiктi пайдалану жөнiндегi барлық операциялардың оқшауланған есебiн жүргізуге тиiс.
4. Егер мән-жайлардың өзгеруi салдарынан қайырмалдыққа берiлген мүлiктiң қайырмалдық берушi көрсеткен мақсатқа сәйкес пайдаланылуы мүмкiн болмаса, ол басқа мақсатқа қайырмалдық берушiнiң келiсiмiмен ғана, ал қайырмалдық берушi азамат қайтыс болған немесе қайырмалдық берушi заңды тұлға таратылған жағдайда - соттың шешiмi бойынша пайдаланылуы мүмкiн.
5. Қайырмалдыққа берiлген мүлiктiң қайырмалдық берушi көрсеткен мақсатқа сәйкес пайдаланылмауы немесе бұл мақсатты осы баптың 4-бабында көзделген ережелердi бұза отырып өзгертуi қайырмалдық берушiге, оның мұрагерлерiне немесе өзге де құқық мирасқорына қайырмалдықтың күшiн жоюды талап етуге құқық бередi.
6. Қайырмалдықтарға осы Кодекстiң 512 және 515-баптары қолданылмайды.
28-тарау. Рента
Ескерту. 28-тараудың тақырыбы жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
Параграф 1. Жалпы ережелер
517-бап. Рента шарты
1. Рента шарты бойынша бiр тарап (рента алушы) екiншi тараптың (рента төлеушiге) меншiгiне мүлiк бередi, ал рента төлеушi алған мүлiкке айырбас ретiнде рента алушыға белгiлi бiр ақша сомасы түрiнде немесе оны ұстау үшiн өзге де нысанда қаражат беру түрiнде мезгiл-мезгiл рента төлеп отыруға мiндеттенедi.
2. Рента шарты бойынша рента алушыға рентаны мерзiмсiз (тұрақты рента) немесе өмiр бойы төлеу (ғұмырлық рента) мiндетiн бекiтуге жол берiледi. Ғұмырлық рента азаматты өмiр бойы асырап отыру жағдайларында белгiленуi мүмкiн. 518-бап. Рентаны ресімдеуге қойылатын талаптар
Рента шарты нотариатта куәландырылуға жатады. Жылжымайтын мүліктің ренталық ауыртпалығы да жылжымайтын мүлікке
құқықтарды мемлекеттік тіркеу туралы заңнамаға сәйкес мемлекеттік тіркелуге жатады.
Аталған талаптарды сақтамау рента шартының маңызсыздығына алып келеді. Ескерту. 518-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен (
алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
519-бап. Рента төлеу үшiн мүлiктi иелiктен айыру
1. Рента төлеу үшiн иелiктен айырылатын мүлiктi рента алушы рента төлеушiнiң меншiгiне ақы төлетiп немесе тегiн беруi мүмкiн.
2. Рента шартында мүлiктi ақы төлетiп беру көзделген жағдайларда тараптардың беру және төлеу жөнiндегi қатынастарына сатып алу-сату шарты туралы ережелер (осы Кодекстiң 25-тарауы), ал мұндай мүлiк тегiн берiлетiн жағдайларда, егер осы тараудың ережелерiнде өзгеше белгiленбесе және шарттың мәнiне қайшы келмесе, сыйға тарту шарты туралы ережелер қолданылады (осы Кодекстiң 27-тарауы).
520-бап. Қозғалмайтын мүлiкке рента жүктеу
1. Рента жер учаскесiне, сондай-ақ оны төлейтiн етiп берiлген кәсiпорынға, үйге, ғимаратқа немесе басқа да қозғалмайтын мүлiкке құқық жүктейдi. Рента төлеушi осындай мүлiктi иелiктен айырған жағдайда оның рента шарты бойынша мiндеттемелерi мүлiктi сатып алушыға ауысады.
2. Рента жүктелiп берiлген, осы баптың 1-тармағында аталған мүлiктi басқа тұлғаның меншiгiне берген тұлға, егер осы Кодексте, басқа да заң актiлерiнде немесе шартта осы мiндеттеме бойынша бiрдей жауапкершiлiк көзделмесе, рента алушының рента шартының бұзылуына байланысты туған талаптары бойынша субсидиарлық жауапты болады (осы Кодекстiң 357-бабы).
521-бап. Рентаның төленуiн қамтамасыз ету
1. Жер учаскесi немесе басқа да қозғалмайтын мүлiк құқығы рента төлейтiн етiп берiлген кезде рента алушы рента төлеушiнiң мiндеттемесiн қамтамасыз ету үшiн осы мүлiктi кепiлге беру құқығын алады.
2. Рента төлеушiнiң мiндеттемелерiн (осы Кодекстiң 292-бабы) орындауды қамтамасыз ету не осы мiндеттемелердiң орындалмағаны немесе тиiсiнше орындалмағаны үшiн жауапкершiлiк тәуекелi рента алушының пайдасына сақтандыру мiндетiн белгiлейтiн талап ақша сомасын немесе өзге де қозғалатын мүлiктi рента төлейтiн етiп берудi көздейтiн шарттың елеулi талабы болып табылады.
3. Рента төлеушi осы баптың 2-тармағында көзделген мiндеттердi орындамаған кезде, сондай-ақ рента алушы жауап бермейтiн мән-жайлар бойынша қамтамасыз етуден айырылған немесе қамтамасыз ету талаптарын нашарлатқан жағдайда рента алушы рента шартын бұзуға және рента шартының бұзылуынан келтірілген залалдың өтелуiн талап етуге құқылы. 521-1-бап. Рента шартын рента алушының талабы бойынша бұзу
1. Рента төлеуші шарттың талаптарын елеулі түрде бұзған жағдайда рента алушы рента төлеушіден осы Кодекстің көзделген талаптармен528-бабында рентаны сатып алуды не шартты бұзуды талап етуге құқылы.
Егер рента төлеуші рента алушының өміріне қастандық жасаса не оған қасақана дене жарақатын салса, рента алушы шартты бұзуды және шығындарды өтеуді талап етуге құқылы. Рента төлеуші рента алушыны қасақана өлтірген жағдайда шарттың бұзылуын және шығындардың өтелуін талап ету құқығы рента алушының мұрагерлеріне тиесілі болады.
2. Егер рента төлеу үшін тұрғынжай немесе өзге де мүлік тегін иеліктен шығарылған болса, рента төлеуші шарттың талаптарын елеулі түрде бұзған кезде рента алушы осы мүліктің құнын рентаның сатып алу бағасының есебіне жатқыза отырып, оны қайтаруды талап етуге құқылы.
Ескерту. 28-тарау 521-1-баппен толықтырылды - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
522-бап. Рента төлеудiң мерзiмiн кешiктiргенi үшiн жауапкершiлiк
Рента төлеу мерзiмiн кешiктiргенi үшiн рента төлеушi рента алушыға, егер шартта тұрақсыздық айыбының өзгеше мөлшерi белгiленбесе, осы Кодекстiң 353 -бабында көзделген мөлшерде тұрақсыздық айыбын төлейдi.
Параграф 2. Тұрақты рента
523-бап. Тұрақты рентаны алушы
1. Тек қана азаматтар мен коммерциялық емес ұйымдар, егер бұл олардың қызмет мақсаттарына сәйкес келсе, тұрақты рентаны алушылар бола алады.
2. Тұрақты рента шарты бойынша рента алушының құқықтары, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, қойылатын талапқа жол беру және мұрагерлiк не құқық мирасқорлығы тәртiбiмен заңды тұлғаларды қайта ұйымдастыру арқылы осы баптың 1-тармағында аталған тұлғаларға берiлуi мүмкiн.
524-бап. Тұрақты рентаның нысаны мен мөлшерi
1. Тұрақты рента шартта белгiленген мөлшерде ақшалай төленедi. 2. Шартта рентаны төлеу рентаның ақшалай сомасының құнына сәйкес
келетiн заттар беру, жұмыстар атқару немесе қызметтер көрсету жолымен қарастырылуы мүмкiн.
3. Егер шартта өзгеше көзделмесе, төленетiн рентаның мөлшерi заң актiлерiнде белгiленген бiр айлық есептiк көрсеткiштiң өзгеруiне бара-бар өзгертiледi.
525-бап. Тұрақты рентаны төлеу мерзiмдерi
Егер шартта өзгеше көзделмесе, тұрақты рента әрбiр күнтiзбелiк тоқсан аяқталғаннан кейiн төленедi.
526-бап. Төлеушiнiң тұрақты рентаны сатып алу құқығы
1. Тұрақты рента төлеушi рентаны сатып алу жолымен оны одан әрi төлеуден бас тартуға құқылы.
2. Бұлайша бас тарту рента төлеушi рента төлеу тоқтатылғанға дейiн үш айдан кешiктiрмей немесе шартта көзделген неғұрлым ұзақ мерзiмде жазбаша
түрде мәлiмдеген жағдайда жарамды болады. Бұл орайда рента төлеу жөнiндегi мiндеттеме, егер шартта сатып-алудың өзгеше тәртiбi көзделмесе, рента алушы барлық сатып алу сомасын алғанға дейiн тоқтатылмайды.
3. Тұрақты рента төлеушiнiң оны сатып алу құқығынан бас тарту туралы шарт талабы маңызсыз болады.
Ескерту. 526-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
527-бап. Тұрақты рентаны рента алушының талабы бойынша сатып алу
Рента алушы: 1) егер шартта өзгеше белгiленбесе, рента төлеушi оның төленуiн бiр жылдан
астам уақытқа кешiктiрген; 2) рента төлеушi рентаның төленуiн қамтамасыз ету жөнiндегi өз
мiндеттемелерiн бұзған (осы Кодекстiң 521-бабы); 3) рента төлеушi төлемге қабiлетсiз деп танылған не оның шартта белгiленген
мөлшер мен мерзiмде рента төлей алмайтынын айқын куәландыратын өзге де мән-жайлар пайда болған;
4) рента төлемi ретiнде берiлген қозғалмайтын мүлiк жалпы меншiкке түскен немесе бiрнеше тұлғалар арасында бөлiнген жағдайларда;
5) шартта көзделген басқа да жағдайларда төлеушiнiң рентаны сатып алуын талап етуге құқылы.
528-бап. Тұрақты рентаның сатып алу бағасы
1. Тұрақты рентаны сатып алу осы Кодекстiң 526 және 527-баптарында көзделген жағдайларда шартта белгiленген баға бойынша жүргiзiледi.
2. Шартта рента төлемi ретiнде төлеу үшiн берiлген мүлiктiң сатып алу бағасы туралы ереже болмаған кезде сатып алу рента төлемдерiнiң жылдық сомасына сәйкес баға бойынша жүзеге асырылады.
3. Шартта рента төлемiн төлеуге тегiн берiлген мүлiктiң сатып алу бағасы туралы ереже болмаған кезде сатып алу бағасына рента төлемдерiнiң жылдық сомасымен қатар берiлген мүлiктiң бағасы да қосылады.
529-бап. Тұрақты рента төлемi ретiнде берiлген мүлiктiң кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi
1. Тұрақты рента төлемi ретiнде тегiн берiлген мүлiктiң кездейсоқ жойылу немесе кездейсоқ бүлiну қаупін рента төлеушi мойнына алады.
2. Тұрақты рента төлемi ретiнде төлеу үшiн берiлген мүлiк кездейсоқ жойылған немесе кездейсоқ бүлiнген кезде төлеушi тиiсiнше рента төлеу жөнiндегi мiндеттемесiн тоқтатуды немесе оны төлеу талаптарын өзгертудi талап етуге құқылы.
Параграф 3. Ғұмырлық рента
530-бап. Ғұмырлық рента алушылар
1. Рента төлемi ретiнде мүлiк берген азаматтың өмiрi кезеңiне не ол көрсеткен басқа азаматтың өмiрi кезеңiне ғұмырлық рента белгiленуi мүмкiн.
2. Егер шартта өзгеше белгiленбесе, рента алу құқығындағы үлестерi тең деп саналған бiрнеше азаматтың пайдасына ғұмырлық рента белгiлеуге жол берiледi.
Рента алушының бiреуi қайтыс болған жағдайда, егер шартта өзгеше көзделмесе, оның рента алу құқығындағы үлесi тiрi қалған рента алушыларға ауысады, ал соңғы рента алушы қайтыс болған жағдайда рента төлеу мiндеттемесi тоқтатылады.
3. Шарт жасасу қарсаңында қайтыс болған азаматтың пайдасына өмір бойына рента белгiлейтiн шарт маңызсыз болады.
Ескерту. 530-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
531-бап. Ғұмырлық рентаның мөлшері
1. Ғұмырлық рента шартта рента алушыға оның өмiр сүруi кезiнде мезгiл-мезгiл төленiп тұратын ақша сомасы ретінде белгiленедi. Тараптар өмiр бойы асырауда ұстау туралы шарт жасасқан жағдайларда шартта мұндай асыраудың ақшалай бағасы белгiленуге тиiс.
2. Егер ғұмырлық рента шартында өзгеше көзделмесе, төленетiн рентаның мөлшері бір айға шаққанда заң актілерінде белгіленген ең төменгі жалақыдан кем болмауға тиiс.
532-бап. Ғұмырлық рентаны төлеу мерзiмдерi
Егер шартта өзгеше көзделмесе, ғұмырлық рента әрбiр күнтiзбелiк ай аяқталғанда төленедi.
533-бап. Ғұмырлық рента шартын рента алушының талап етуi бойынша бұзу
Ескерту. 533-бап алып тасталды- ҚР 27.02.2017 Заңымен (алғашқы№ 49-VI ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
534-бап. Рента төлемі ретiнде берiлген мүлiктiң кездейсоқ жойылу қаупi
Ғұмырлық рента төлемi ретiнде берiлген мүлiктiң кездейсоқ жойылуы немесе кездейсоқ бүлiнуi рента төлеушiнi шартта көзделген талаптар бойынша оны төлеу мiндеттемесiнен босатпайды.
Параграф 4. Өмiр бойы асырауда ұстау
535-бап. Өмiр бойы асырауда ұстау шарты
1. Өмiр бойы асырауда ұстау шарты бойынша рента алушы азамат өзiне тиесiлi қозғалмайтын мүлiктi сол азаматты және (немесе) ол көрсеткен үшiншi бiр адамды өмiр бойы асырауда ұстауды жүзеге асыруға мiндеттенген рента төлеушiнiң меншiгiне бередi.
2. Өмiр бойы асырауда ұстау шартына, егер осы параграфтың ережелерiнде өзгеше көзделмесе, ғұмырлық рента туралы ережелер қолданылады.
536-бап. Асырауда ұстауға беру жөнiндегi мiндет
1. Рента төлеушiнiң асырауда ұстауға беру жөнiндегi мiндетiне тұрғын үйге, тамақ пен киiмге, күтiм жасауға және қажеттi көмекке деген қажеттерiн қамтамасыз ету енгiзiлуi мүмкiн.
Шартта рента төлеушiнiң салт-жора қызметiн көрсетуге ақы төлеуi де көзделуi мүмкiн.
2. Шартта жалпы асырауда ұстау көлемiнiң құны айқындалуға тиiс. Бұл орайда жалпы асырауда ұстау көлемi айына заң актiлерiнде белгiленген ең төменгi екi жалақы мөлшерiнен кем болмауы керек.
3. Азаматқа берiлетiн немесе берiлуге тиiстi асырауда ұстау көлемi туралы тараптар арасында туған дауды шешу кезiнде сот адалдық пен парасаттылық принциптерiн басшылыққа алуға тиiс.
537-бап. Өмiр бойы асырауда ұстауды мерзiмдiк төлеммен ауыстыру
Шартта асырауда ұстауға заттай берудi ақшалай мерзiмдiк төлеммен ауыстыру мүмкiндiгi көзделуi мүмкiн.
538-бап. Өмiр бойы асырауда ұстауды қамтамасыз ету үшiн берiлген мүлiктi иелiктен айыру және пайдалану
1. Рента төлеушi өзiне өмiр бойы асырауда ұстауды қамтамасыз ету үшiн берiлген қозғалмайтын мүлiктi иелiктен айыруға, кепiлге беруге және өзге де әдiспен жүктеуге рента алушының алдын ала келiсiмi болғанда ғана құқылы.
2. Рента төлеушi өмiр бойы асырауда ұстауға берiлген кезеңде аталған мүлiктi пайдалану осы мүлiктiң құнын оның табиғи тозуынан тыс төмендетуге әкеп соқпау үшiн қажеттi шаралар қолдануға мiндеттi.
539-бап. Өмiр бойы асырауда ұстауды тоқтату
1. Өмiр бойы асырауда ұстау мiндеттемесi рента алушы қайтыс болғанда тоқтатылады.
2. Рента төлеушi өз мiндеттемелерiн елеулi түрде бұзған кезде рента алушы өмiр бойы асырауды қамтамасыз етуге берiлген қозғалмайтын мүлiктi қайтаруды не осы Кодекстiң 528-бабында белгiленген жағдайда өзiне сатып алу бағасын төлеудi талап етуге құқылы. Бұл орайда рента төлеушiнiң рента алушыны асырауда ұстауға байланысты жасалған шығындарды өтеудi талап етуге құқығы жоқ.
29-тарау. Мүліктік жалдау (жалға алу)
Ескерту. , , мәтіндеріндегі "Мүлік", "аренда",29-тараудың 596 1113-баптардың "мүлік жалдау", "мүлікті жалдауға", "мүлікті жалдау", "мүлік жалдаудың", " мүлікті жалға алу", "Мүлікті жалдаудың", "мүлікті жалға (арендаға) беру", " арендаға берушi немесе жалға" деген сөздер тиісінше "Мүліктік", "жалға алу", " мүліктік жалдау", "мүліктік жалдауға", "мүліктік жалдау", "мүліктік жалдаудың", "мүліктік жалдау", "Мүліктік жалдаудың", "мүліктік жалдау (жалға алу)", "жалға беруші немесе жалдауға" деген сөздермен ауыстырылды - ҚР 04.07.2013 № 131-
Заңымен (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соңV қолданысқа енгізіледі).
Параграф 1. Жалпы ережелер
540-бап. Мүлiктік жалдау шарты
1. Мүлiктік жалдау (жалға алу) шарты бойынша жалға берушi жалға алушыға мүлiктi ақы төлеп уақытша иеленуге және пайдалануға беруге мiндеттенедi.
2. Жалға алушы жалға алған мүлiкке осы Кодексте белгiленген жағдайлар мен тәртiп бойынша иелiк етуге құқылы.
3. Лизинг, прокат шарттары да, сондай-ақ мүлiктi ақы төлеп уақытша иелену мен пайдалануға беруге байланысты шарттардың өзге түрлерi де мүлiктік жалдау шарттарына жатады.
541-бап. Мүлiктік жалдау объектiлерi
1. Мүлiктік жалдауға кәсiпорындар мен басқа да мүлiктiк кешендер, жер учаскелерi, үйлер, ғимараттар, жабдықтар, көлiк құралдары және оларды пайдалану процесiнде өздерiнiң табиғи қасиеттерiн жоймайтын басқа да заттар ( тұтынылмайтын заттар) берiлуi мүмкiн.
2. Егер заң актiлерiнде өзгеше көзделмесе, жер пайдалану құқығы, жер қойнауын пайдалану құқығы және басқа да заттық құқықтар мүлiктік жалдау объектiсi болуы мүмкiн.
3. Заң актiлерiнде мүлiктiк жалдауға тапсыруға жол берiлмейтiн немесе шектеу жасалатын мүлiк түрлерi белгiленуi мүмкiн.
4. Қазақстан Республикасының заңнамалық актілерінде тұрғын үй-жайларды, жер учаскелерiн, жер қойнауы учаскелерiн және басқа да оқшауланған табиғи объектiлердi мүлiктiк жалдауға тапсыру ерекшелiктерi белгiленуi мүмкiн.
5. Мемлекеттік мүлікті мүліктік жалдауға беру ерекшеліктері Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде белгіленеді.
6. Мемлекеттік мүлікті мемлекеттік-жекешелік әріптестік шарты, оның ішінде концессия шарты негізінде мүліктік жалдауға тапсыру ерекшеліктері Қазақстан Республикасының мемлекеттік-жекешелік әріптестік туралы және концессиялар туралы заңнамалық актілерінде белгіленеді.
Ескерту. 541-бапқа өзгерістер енгізілді - ҚР 2011.03.01 № 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 04.07.2013 № 131-V ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 31.10.2015 № 380-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
542-бап. Мүлiктік жалдау шартының талаптары
Мүлiктік жалдау шартында жалға алушыға мүлiктiк жалдау объектiсi ретiнде берiлуге тиесiлi мүлiктi анықтауға мүмкiндiк беретiн деректер көрсетiлуге тиiс.
Шартта мұндай деректер болмаған кезде мүлiктiк жалдауға берiлуге тиесiлi объект туралы талап тараптармен келiсiлмеген деп, ал тиiстi шарт жасалмаған деп есептеледi.
543-бап. Жалға берушi
Мүлiктi жалға беру құқығы оның меншiк иесiне тиесiлi. Заң актiлерiнде уәкiлдiк берiлген немесе меншiк иесi мүлкiн жалға берудi
тапсырған тұлғалар да жалға берушiлер бола алады.
544-бап. Мүлiктік жалдау шартының нысаны
1. Бiр жылдан астам мерзiмге жасалған, ал егер тараптардың бiреуi заңды тұлға болса, мерзiмiне қарамай-ақ, мүлiктік жалдау шарты жазбаша түрде жасалуға тиiс.
2. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
3. Азаматтар арасындағы бiр жылға дейiнгi мерзiмге оны қоса алғанда мүлiктік жалдау шарты ауызша түрде жасалуы мүмкiн.
4. Мүлiкке меншiк құқығының кейiннен жалға алушыға ауысуын көздейтiн мүлiктік жалдау шарты сондай мүлiктi сатып алу-сату шарты үшiн көзделген нысанда жасалады.
Ескерту. 544-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
545-бап. Мүлiктік жалдау шартының мерзiмi
1. Мүлiктік жалдау шарты шартта белгiленген мерзiмге жасалады. 2. Егер мүлiктік жалдау шарты мерзiмi көрсетiлмей жасалса, ол белгiсiз
мерзiмге жасалған деп есептеледi. Қозғалмайтын мүлiктi жалдаған жағдайда, егер заң актiлерiнде немесе шартта
өзгеше көзделмесе, әрбiр тарап екiншi тарапқа үш ай бұрын ескертiп, мұндай шарттан кез келген уақытта және өзге мүлiктi жалдаған жағдайда, бiр ай iшiнде бас тартуға құқылы.
3. Заң актiлерiнде мүлiктік жалдаудың жекелеген түрлерi үшiн, сондай-ақ мүлiктiң жекелеген түрлерiн жалдау үшiн шарттың барынша ұзақ (шектi) мерзiмi белгiленуi мүмкiн. Мұндай жағдайларда, егер шартта жалдау мерзiмi белгiленбесе және заң актiлерiнде белгiленген шектi мерзiм бiткенге дейiн тараптардың ешқайсысы шарттан бас тартпаса, шарт шектi мерзiмiнiң бiтуiне қарай тоқтатылады.
Бұл жағдайда заң актiлерiнде белгiленген шектi мерзiмнен асатын мүлiктік жалдау шарты барынша ұзақ (шектi) мерзiмге тең етiп жасалған деп есептеледi.
546-бап. Мүлiктік жалдау шарты бойынша жасалатын төлем
1. Жалға алынған мүлiктi пайдалану үшiн төлемдi, егер заң актiлерiнде өзгеше көзделмесе, шартта белгiленген тәртiп, мерзiм мен нысан бойынша жалға алушы төлейдi. Шартта олар айқындалмаған жағдайларда салыстырмалы мән-жайларда әдетте сол секiлдi мүлiктi жалға алған кезде қолданылатын тәртiп, мерзiм мен нысан белгiленген деп есептеледi.
2. Төлем барлық жалданылған мүлiк үшiн тұтас немесе оның құрамдас бөлiктерiнiң әрқайсысы бойынша жеке:
1) мерзiмдiк немесе бiржолғы енгiзiлетiн төлемдердiң тұрлаулы сомасында белгiленген;
2) жалданылған мүлiктi, өнiмдi, жемiстердi немесе кiрiстердi пайдалану нәтижесiнде алынған белгiлi бiр үлес;
3) жалға алушының белгiлi бiр қызмет көрсетулерi; 4) жалға алушының шартта келiсiлген затты жалға берушiнiң меншiгiне
немесе жалдауына беруi; 5) жалға алушыға жалданылған мүлiктi жақсарту жөнiнде шартта келiсiлген
шығындарды жүктеуi түрiнде белгiленедi. Тараптар шартта мүлiктi немесе өзге де төлем нысандарын пайдалану үшiн
аталған төлем нысандарын ұштастыруды көздеуi мүмкін. 3. Мүлiктi пайдаланғаны үшiн жасалатын төлем мөлшерi, егер тараптардың
келiсiмiнде өзгеше көзделмесе, кем дегенде жылына бiр рет өзгертiлуi мүмкiн. Заң актiлерiнде мүлiктік жалдаудың жекелеген түрлерi үшiн, сондай-ақ мүлiктiң жекелеген түрлерiн жалдау үшiн жасалатын төлем мөлшерін қайта қарауға өзге де ең аз мерзімдер көзделуі мүмкін.
4. Орталықтандырылып белгіленген баға мен тарифтер өзгертілген жағдайда тараптардың бiреуiнiң талабы бойынша төлем мөлшерi қайта қаралуы мүмкiн.
5. Егер жалға алушы жауап бермейтiн мән-жайларға байланысты шартта көзделген пайдалану жағдайлары немесе мүлiктiң жай-күйi едәуiр нашарлап кетсе, заң актiлерiнде өзгеше көзделмесе, ол төлемдi тиiсiнше азайтуды талап етуге құқылы.
6. Егер шартта өзгеше көзделмесе, жалға алушы мүлiктi пайдаланғаны үшiн төлем төлеу мерзiмiн елеулi түрде бұзған жағдайда жалға берушi одан төлемдi жалға берушi белгiлеген мерзiмнен бұрын төлеудi талап етуге құқылы. Бұл ретте жалға берушiнiң төлемдi қатарынан екi мерзiмнен астам уақытқа мерзiмiнен бұрын төлеудi талап етуге құқығы жоқ.
547-бап. Мүлiктi жалға алушыға беру
1. Жалға берушi мүлiктi жалға алушыға шарт талаптары мен мүлiктiң мақсатына сәйкес келетiн күйде беруге мiндеттi.
2. Егер шартта өзгеше көзделмесе, мүлiк жалға оның барлық керек-жарақтарымен және оған қатысты құжаттармен (мүлiктiң жиынтықтылығын, қауiпсiздiгiн, сапасын, пайдалану тәртiбiн куәландыратын және т.б. құжаттармен) бiрге берiледi.
Егер мұндай керек-жарақтар мен құжаттар берiлмеген болса, алайда жалға алушы мүлiктi оларсыз мақсатқа сәйкес пайдалана алмаса не шарт жасасу кезiнде үмiт етуге құқығы болғанынан едәуiр дәрежеде айрылатын болса, ол өзiне жалға берушiден мұндай керек-жарақтар мен құжаттарды берудi немесе шартты бұзуды талап ете алады.
3. Егер жалға беруші жалға берiлген мүлiктi жалға алушыға шартта көрсетiлген мерзiмде бермесе, ал шартта мұндай мерзiм көрсетiлмесе, жалға алушы қисынды мерзiмде одан осы Кодекстiң 355-бабына сәйкес сол мүлiктi талап етуге немесе шартты бұзуды талап етуге құқылы.
548-бап. Жалға берушiнiң жалға берiлген мүлiктiң кемшiлiктерi үшiн жауапкершiлiгi
1. Жалға берушi жалға берiлген мүлiктiң оны пайдалануға толық немесе iшiнара кедергi жасайтын кемшiлiктерi үшiн, тiптi ол шарт жасалған кезде бұл кемшiлiктер туралы бiлмесе де, жауап бередi.
Осындай кемшiлiктер табылған жағдайда жалға алушы жалға берушiден өз қалауы бойынша:
1) мүлiктiң кемшiлiктерiн тегiн жоюды; 2) жалдау ақысын соған мөлшерлес азайтуды; 3) жалға берушiге бұл туралы алдын ала хабарлай отырып, сол кемшiлiктердi
жою жолында өзi жасаған шығындар сомасын мүлiктi пайдаланғаны үшiн төленетiн төлемнен ұстап қалуды;
4) шартты мерзiмiнен бұрын бұзуды талап етуге құқылы. 2. Жалға алушының талаптары туралы немесе оның мүлiктiң кемшiлiктерiн
жалға берушiнiң есебiнен жою ниетi туралы хабарланған жалға беруші жалға алушының келісімімен жалға берілген мүлікті тез арада тиiстi жағдайда тұрған басқа осыған ұқсас мүлiкпен ауыстыра алады не мүлiктiң кемшiлiктерiн тегiн жоя алады.
3. Егер жалға алушының талаптарын қанағаттандыру немесе оның мүлiктi пайдаланғаны үшiн жасалатын төлемнен кемшiлiктi жоюға кеткен шығындарын ұстап қалу жалға алушыға келтiрiлген залалды өтеуге жетпесе, ол шығынның өтелмеген бөлiгiн өтеудi талап етуге құқылы.
4. Жалға берушi жалға берiлген мүлiктiң шарт жасасқан кезде айтылған немесе жалға алушыға бұрыннан белгiлi болған кемшiлiктерi үшiн жауап бермейдi.
549-бап. Жалға берiлетiн мүлiкке үшiншi тұлғалардың құқықтары
1. Мүлiктi жалға беру бұл мүлiкке үшiншi тұлғалардың құқықтарын тоқтату немесе өзгерту үшiн негiз болып табылмайды.
2. Жалға берушi шарт жасасқан кезде жалға алушыға жалға берiлетiн мүлiкке үшiншi тұлғалардың барлық құқықтары (сервитут, кепiл құқығы және т.б.) туралы ескертуге мiндеттi.
Бұл ереженi орындамау жалға алушыға мүлiктi пайдаланғаны үшiн төлемдi азайтуды не шартты бұзуды талап етуге құқық бередi.
550-бап. Жалға алған мүлiктi пайдалану
Жалға алушы мүлiктi шарт талаптарына сәйкес, ал егер шартта мұндай талаптар белгiленбесе, мүлiктiң мақсатына сәйкес пайдалануға мiндеттi.
551-бап. Жалға алушының жалға алған мүлiкке билiк ету шегi
1. Егер заң актiлерiнде өзгеше белгiленбесе, жалға алушы жалға берушiнiң келiсiмiмен жалға алған мүлiктi қосымша жалдауға (қосалқы жалға алу), мүлiктiк жалдау шарты бойынша өз құқықтары мен мiндеттерiн басқа тұлғаға беруге ( қайта жалға беру), жалға алған мүлiктi тегiн пайдалануға беруге, сондай-ақ осы құқықтарды кепiлге беруге және оларды шаруашылық серiктестiктерiнiң, акционерлiк қоғамдардың жарғылық капиталына салым немесе өндiрiстiк кооперативке жарна ретiнде салуға құқылы. Аталған жағдайларда, қайта жалға берудi қоспағанда, жалға алушы жалға берушiнiң алдында шарт бойынша жауапты болып қала бередi.
2. Мүлiктi басқа тұлғаларға беру туралы шартты жалдау шартының мерзiмiнен асатын мерзiмге жасауға болмайды.
3. Қайта жалға беру шартына, егер заң актiлерiнде өзгеше көзделмесе, мүлiктік жалдау шарты туралы ережелер қолданылады.
552-бап. Жалға берушiнiң жалға берiлген мүлiктi ұстап-тұту жөнiндегi мiндеттерi
1. Жалға берушi жалға берiлген мүлiкке тараптармен келiсiлген мерзiмдерде, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, өз есебінен күрделi жөндеу жүргiзуге мiндеттi.
2. Жалға алушы жауап бермейтiн мән-жайларға байланысты пайда болып, шұғыл қажеттiлiк туғызған жөндеудi, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, жалға берушi қисынды мерзiмдерде өз есебiнен жүргiзедi.
3. Жалға берушiнiң күрделi жөндеу жөнiндегi мiндеттерiн атқармауы жалға алушыға өз қалауы бойынша:
1) жөндеудi өз бетiнше жүргiзуiне және жөндеу құнын жалға берушiден өндiрiп алуына;
2) жөндеу құнын шарт бойынша төлемнiң есебiне есептеуiне; 3) шарт бойынша төлемдi тиiсiнше азайтуды талап етуiне; 4) шарттан бас тартуына құқық бередi.
553-бап. Жалға алушының жалданған мүлiктi ұстап-тұту жөнiндегi мiндеттерi
Жалға алушы, егер заңдарда немесе шартта өзгеше көзделмесе, мүлiктi дұрыс күйде ұстап-тұтуға, ағымдағы жөндеудi өз есебiнен жүргiзуге және мүлiктi ұстап-тұтуға кететiн шығындарды көтеруге мiндеттi.
554-бап. Жалға алушының жалданған мүлiктен алынатын өнiмге, жемiстерге және өзге де кiрiстерге меншiк құқығы
Жалданған мүлiктi пайдалану нәтижесiнде жалға алушының алған өнiмi, жемiстерi және өзге де кiрiстерi, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, оның меншiгi болып табылады.
555-бап. Мүлiктi жақсарту
1. Жалданған мүлiктiң жалға алушы жүргiзген бөлiгiнiң ажыратылып жақсартылуы, егер шартта өзгеше көзделмесе, оның меншiгi болып табылады.
2. Жалға алушы өз қаражаты есебiнен және жалға берушiнiң келiсiмiмен, жалданған мүлiкке зиян келтiрмей ажыратуға болмайтын жақсарту жүргiзсе, шартта өзгеше көзделмегендiктен, оның шарт тоқтағаннан кейiн осы жақсартудың құнын өтеттiрiп алуға құқығы бар.
3. Жалға алушының жалға берушiнiң келiсiмiнсiз жүргiзген ажыратуға болмайтын жақсартуының құны, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, өтеуге жатпайды.
556-бап. Тараптардың бiреуiнiң талап етуi бойынша мүліктік жалдау шартын өзгерту және бұзу
1. Тараптардың біреуiнiң талап етуi бойынша мүлiктiк жалдау шарты осы Кодексте, өзге де заң актiлерiнде немесе шартта көзделген жағдайларда сот тәртiбiмен өзгертiлуi немесе мерзімiнен бұрын бұзылуы мүмкiн.
2. Жалға берушiнiң талабы бойынша мынадай жағдайларда: 1) егер жалға алушы мүлiктi шарт талаптарын немесе мүлiктiң мақсатын
елеулi түрде бұзып, жалға берушiнiң мұндай iс-әрекеттi тоқтату туралы жазбаша ескертуiне қарамастан пайдаланса;
2) егер жалға алушы қасақана немесе абайсызда мүлiктi елеулi түрде нашарлатса;
3) егер жалға алушы мүлiктi пайдаланғаны үшiн шартта белгiленген төлем мерзiмiнiң өтуi бойынша екi реттен астам төлем жасамаса;
4) егер жалға алушы жалға алу шартында белгiленген мерзiмде мүлікті күрделі жөндеуден өткізбесе, ал ол шартта көрсетілмеген жағдайда - заң актiлерiне немесе шартқа сәйкес күрделi жөндеу мiндетi жалға алушыға жүктелген жағдайларда, оны қисынды мерзiмде өткiзбесе, мүлiктiк жалдау шарты бұзылып, мүлiк жалға берушiге қайтарылуы мүмкiн.
Жалға берушi жалға алушыға өз мiндетiн қисынды мерзiмде орындауға мүмкiндiк берiлгеннен кейiн ғана шартты мерзiмiнен бұрын бұзуды талап етуге құқылы.
3. Жалға алушының талап етуiмен шарт мынадай жағдайларда: 1) жалға берушi мүлiктi жалға алушыға пайдалануға бермеген не мүлiкті
шарт талаптарына немесе мүлiктiң мақсатына сәйкес пайдалануға кедергi жасаған;
2) жалға беруші өзiне жүктелген мүлiктi күрделi жөндеу мiндетiн шартта белгiленген мерзiмде, ал ол шартта болмаған жағдайда - қисынды мерзiмде жүргiзбеген;
3) жалға алушыға берiлген мүлiкте оны пайдалануға кедергi келтiретiн кемшiлiктер болып, оны шарт жасалған кезде жалға берушi ескертпеген, жалға алушыға алдын ала белгiлi болмаған және мүлiктi көрген кезде немесе шарт жасаған кезде оның ақаусыздығын тексерген кезде оның байқалуы мүмкiн болмаған;
4) егер мүлiк жалға алушы жауап бермейтiн мән-жайларға байланысты пайдалану үшiн жарамсыз күйде болған реттерде мерзiмiнен бұрын бұзылуы мүмкiн.
557-бап. Жалға алушының шартты жаңа мерзiмге жасасуға артықшылықты құқығы
1. Өз мiндетiн лайықты түрде атқарған жалға алушының, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, шарт мерзiмi бiткеннен кейiн басқа тұлғалардың алдында мүлiктік жалдау шартын жаңа мерзiмге жасау үшiн басқадай тең жағдайларда артықшылықты құқығы болады. Жалға алушы мүлiктiк жалдау шартында көрсетiлген мерзiмде, ал егер шартта осындай мерзiм көрсетiлмесе, шарттың қолданылуы аяқталғанша қисынды мерзiмде осындай шартты жасағысы келетiндiгi туралы жалға берушiге жазбаша түрде хабарлауға мiндеттi.
2. Мүлiктi жалға алу шарты жаңа мерзiмге жасалған кезде шарт талаптары тараптардың келiсiмiмен өзгертiлуi мүмкiн.
3. Егер жалға берушi шартты жаңа мерзiмге жасасу жөнiнде жалға алушыдан бас тартса, бiрақ шарт мерзiмi бiткен күннен бастап бiр жылдың iшiнде басқа тұлғамен мүлiктiк жалдау шартын жасаса, жалға алушы өз таңдауы бойынша сотта осы жасалған шарт бойынша құқықтар мен мiндеттердi өзiне ауыстыруды және өзiмен шарт жасасуды жаңартудан бас тарту арқылы келтiрiлген залалды өтеудi не тек залалды өтеудi талап етуге құқылы.
558-бап. Мүлiктік жалдау шартын қайта жаңарту
Егер жалға берушi тарапынан қарсылық болмаған жағдайда жалға алушы шарттың мерзiмi бiткен соң да мүлiктi пайдалана беретiн болса, шарт нақ сондай талаптармен белгiсiз мерзiмге қайта жаңартылған деп есептеледi. Бұл орайда тараптардың әрқайсысы қозғалмайтын мүлiктi жалға алған кезде, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, бұл туралы басқа тарапқа кем дегенде үш ай бұрын және өзге мүлiктi жалға алған кезде - бiр ай ішінде жазбаша түрде ескерте отырып, шарттан кез келген уақытта бас тарта алады.
559-бап. Мүлiктік жалдау шартының тараптар өзгерген кезде күшiн сақтап қалуы
1. Жалға берiлген мүлiкке меншiк құқығының, шаруашылық жүргiзу құқығының немесе оралымды басқару құқығының басқа тұлғаға ауысуы мүлiктік жалдау шартын өзгертуге немесе бұзуға негiз болып табылмайды.
2. Қозғалмайтын мүлiктi жалға алушы болып табылатын азамат қайтыс болған жағдайда осы мүлiктiк жалдау шарты бойынша оның құқықтары мен мiндеттерi, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, оның мұрагерiне ауысады.
Мұндай мұрагерге шарттың қолданылу мерзiмiнiң қалған уақытында шарт жасасудан бас тартуға, шарт жасасу жалға алушының жеке басының қасиеттерiне байланысты болған жағдайды қоспағанда, жалға берушiнiң құқығы болмайды.
560-бап. Қосымша жалдау шартының негiзгi мүлiктік жалдау шартына тәуелдiлiгi
1. Егер мүлiктік жалдау шартында өзгеше көзделмесе, мүлiктік жалдау шартын мерзiмiнен бұрын тоқтату соған сәйкес жасалған қосымша жалдау шартын тоқтатуға әкеп соғады.
2. Егер мүлiктік жалдау шарты осы Кодексте көзделген негiздер бойынша жарамсыз деп табылса, онда оған сәйкес жасалған қосымша жалдау шарты маңызсыз болып табылады.
Ескерту. 560-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
561-бап. Шарт тоқтатылған кезде жалға берушiге мүлiктiң қайтарылуы
1. Мүлiктік жалдау шарты тоқтатылғаннан кейiн жалға алушы мүлiктi алған кезiндегi күйiнде, қалыпты тозуын ескере отырып немесе шартта келiсiлген күйiнде оны жалға берушiге қайтаруға мiндеттi.
2. Егер шарт мерзiмi аяқталған соң қайтарылатын мүлiктiң жай-күйi осы баптың 1-тармағында көзделген талаптарға сәйкес келмесе, жалға алушы келтiрiлген шығынды жалға берушiге өтейдi. Егер жалға берiлген мүлiк шартта көзделген қызмет мерзiмiнен бұрын iстен шығып қалса, жалға алушы, егер шартта өзгеше көзделмесе, жалға берушiге мүлiктiң қалдық құнын өтейдi.
3. Егер жалға алушы жалға алған мүлiктi қайтармаса немесе оны мезгілінде қайтармаса, жалға беруші барлық мерзімі өткізілген уақыт үшiн мүлiктi пайдалану ақысын төлеудi талап етуге құқылы. Аталған ақы жалға берушiге келтiрiлген шығындарды жабуға жетпесе, ол оны өтеудi талап ете алады.
4. Шартта уақытында қайтарылмаған жалға алған мүлiк үшiн тұрақсыздық айыбын төлеу көзделген жағдайда шығын, егер шартта өзгеше көзделмесе, тұрақсыздық айыбынан тыс толық сомада өндiрiлiп алынуы мүмкiн.
562-бап. Мүлiктiң жалға алушының меншiгiне көшуi
1. Мүлiктік жалдау шартында жалға алынған мүлiк жалға алушының меншiгiне тараптардың келiсiмiнде белгiленген жағдайларда көшедi деп көзделуi мүмкiн.
2. Егер шартта жалға алынған мүлiктi сатып алу туралы ереже көзделмесе, ол тараптардың қосымша келiсiмiмен белгiленуi мүмкiн, бұл орайда олар мүлiктi
пайдалануға бұрын төленген ақыны сатып алу бағасына есептеу туралы уағдаласуға құқылы.
3. Жалға алынған мүлiктi сатып алуға тыйым салу жағдайлары заң актiлерiмен белгiленуi мүмкiн.
563-бап. Жалға алушының құқықтарын қорғау
Жалға алушыға оның жалға алған мүлiкке құқықтары меншiк құқығын қорғаумен тең қамтамасыз етiледi.
Жалға берушi жалға алынған мүлiктi пайдалану қандай да болсын құқықтары жоқ үшiншi бiр тұлғаның күш көрсеткен iс-қимылдарымен бұзылғаны үшiн жалға берушiнiң алдында жауапты болмайды.
Жалға алушының талап қоюға және өзге де түрде өз атынан өзiне тиесiлi құқықтарды қорғауға құқығы бар.
564-бап. Мүлiктiк жалдаудың жекелеген түрлерiнiң және жекелеген мүлiк түрлерiн жалдаудың ерекшелiктерi
Мүлiктік жалдау шартының жекелеген түрлерiне және жекелеген мүлiк түрлерiн жалдау шарттарына (лизинг, кәсiпорындарды жалдау, үйлер мен ғимараттарды жалдау, көлiк құралдарын жалдау, прокат), егер заң актілерінде және осы Кодекстiң ережелерiнде олар туралы өзгеше көзделмесе, осы параграфта көзделген ережелер қолданылады.
Ескерту. 564-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.07.05 . N 75 Заңымен .
Параграф 2. Лизинг
565-бап. Лизинг шарты
1. Лизинг шарты бойынша лизинг берушi лизинг алушы көрсеткен мүлiктi сатушыдан меншiгiне сатып алуға және лизинг алушыға осы мүлiктi ақы төлеп уақытша иеленуге және пайдалануға беруге мiндеттенедi.
2. Лизинг шартында сатушыны және сатып алынатын мүлiктi таңдап алуды лизинг берушi жүзеге асырады деп көзделуi мүмкiн.
3. Қазақстан Республикасының заң актiлерiмен лизинг шартының жекелеген түрлерiнiң ерекшелiктерi белгiленуi мүмкiн.
Ескерту. 565-бапқа өзгерістер енгізілді - ҚР 2004.03.10. N 532; 05.10.2018 № 184-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
566-бап. Лизинг нысанасы
Yйлер, ғимараттар, машиналар, жабдықтар, құрал-саймандар, көлiк құралдары, жер учаскелерi және кез келген тұтынылмайтын заттар лизинг нысанасы бола алады.
Кепіл нысанасы болып табылатын жылжымалы мүлік лизинг нысанасы бола алады.
Бағалы қағаздар мен табиғи ресурстар лизинг нысанасы бола алмайды. Ескерту. 566-бапқа өзгеріс енгізілді - ҚР 22.04.2015 № 308-V Заңымен (
алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
567-бап. Лизинг шартының елеулi талаптары
Лизинг шартында, осы Кодекстiң 542-бабында аталған талаптардан басқа, мынадай талаптар болуға тиiс:
1) мүлiктi сатушының атауы; 2) лизинг алушыға мүлiктi берудiң талаптары мен мерзiмi; 3) төлемдердiң мөлшерi мен мерзiмдiлiгi; 4) шарт мерзiмi;
5) егер шартта лизинг алушының меншiгiне мүлiктiң көшуi көзделсе, осындай көшудiң талаптары;
6) ауыртпалықтардың бар-жоғы. Қаржы лизингі шартының елеулі талаптары "Қаржы лизингі туралы"
Қазақстан Республикасының белгіленеді.Заңында Ескерту. 567-бапқа өзгерістер енгізілді - ҚР 22.04.2015 № 308-V (алғашқы
ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
568-бап. Мүлiктi лизингке беру туралы сатушыны хабардар ету
Лизинг берушi лизинг алушы үшiн мүлiк сатып ала отырып, мүлiктiң белгiлi бiр тұлғаға лизинг ретiнде беруге арналғандығы туралы сатушыны хабардар етуге тиiс.
569-бап. Мүлiктiң кездейсоқ жойылу немесе бүлiну қаупi
Лизингтiң нысанасы болып табылатын мүлiктiң кездейсоқ жойылу немесе бүлiну қаупi, егер шартта өзгеше көзделмесе, мүлiктi берген кезде лизинг алушыға ауысады.
570-бап. Лизинг шарты бойынша төленетiн төлемдер
Лизинг шартына сәйкес төленуге тиiстi мерзiмдiлiк төлемдерi мүлiктiң шарт жасасқан кездегi баға бойынша құнының барлық немесе елеулi бөлiгiнiң амортизациясы ескерiле отырып есептелуi мүмкiн.
571-бап. Лизинг алушыға лизинг шартының нысанасын беру
1. Лизинг шартының нысанасы болып табылатын мүлiктi сатушы лизинг алушыға, егер шартта өзгеше көзделмесе немесе мiндеттеме мәнiнен өзгеше туындамаса, лизинг алушы орналасқан жерде тiкелей бередi.
2. Лизинг шартының нысанасы болып табылатын мүлiк осы шартта аталған мерзiмде лизинг алушыға берiлмеген жағдайда, егер мерзiмiн өткiзуге лизинг берушi жауап беретiн мән-жайлар бойынша жол берiлген болса, лизинг алушы шартты бұзуды және шығынды өтеудi талап етуге құқылы.
3. Кепіл нысанасы болып табылатын жылжымалы мүлік лизинг шарты бойынша берілуі мүмкін.
Ескерту. 571-бапқа өзгеріс енгізілді - ҚР 22.04.2015 № 308-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
572-бап. Сатушының жауапкершiлiгi
1. Лизинг алушы лизинг шартының нысанасы болып табылатын мүлiктi сатушыға - сатушы мен лизинг берушiнiң арасында жасалған сатып алу-сату шартынан туындайтын, атап айтқанда, мүлiктiң сапасы мен жиынтықтылығына, оны беру мерзiмiне қатысты және сатушы шартты тиiстi түрде орындамаған басқа да жағдайларда туындайтын талаптарды тiкелей қоюға құқылы. Бұл орайда лизинг алушы аталған мүлiктi сатып алу-сату тарабы болғанда сатып алынған мүлiкке ақы төлеу мiндетiн қоспағанда, оны сатып алушы үшiн осы Кодексте көзделген құқықтары болады және міндеттемелердi мойнына алады.
Сатушымен қатынастарда лизинг алушы мен лизинг берушi бiрлескен кредит берушi болады.
2. Егер лизинг шартында өзгеше көзделмесе, сатушыны таңдау
құқығы лизинг алушыда болған жағдайларды қоспағанда, лизинг берушi лизинг алушының алдында сатушының сатып алу-сату шартынан туындайтын талаптарды орындауы үшiн жауап бермейдi. Сатушыны лизинг берушi таңдайтын жағдайда лизинг алушы сатып алу-сату шартынан туындайтын талаптарды тiкелей өз қалауы бойынша бiрдей жауап беретiн мүлiктi сатушыға да, лизинг алушыға да қоюға құқылы.
Параграф 3. Кәсiпорынды жалдау
573-бап. Кәсiпорынды жалдау шарты
1. Кәсiпорынды жалдау шарты бойынша жалға берушi жалға алушыға кәсiпкерлiк қызметтi жүзеге асыруы үшiн кәсiпорынды ақы төлеп уақытша иеленуге және кәсiпорынды толығымен бiртұтас мүлiк кешенi ретiнде пайдалануға (осы Кодекстiң 119-бабы), оның iшiнде құқық иесiнiң фирмалық атауына және (немесе) коммерциялық белгiсiне, қорғалатын коммерциялық ақпаратқа құқығын, сондай-ақ жалға берушiнiң басқа тұлғаларға беруге құқығы жоқ құқықтар мен мiндеттердi қоспағанда, шартта көзделген басқа да айрықша құқықтағы объектiлердi - тауар белгiсiн, қызмет көрсету белгiсiн және т.б. ( айрықша құқықтар кешенiн) беруге мiндеттенедi.
2. Жалға берушiнiң тиiстi қызметпен айналысуға берiлген лицензия негізінде алған құқықтары, егер заң актілерінде өзгеше белгіленбесе, жалға алушыға берiлмеуге тиiс. Шарт бойынша берiлетiн кәсiпорынның құрамына осындай арнаулы рұқсаты (лицензиясы) болмаған жағдайда жалға алушының орындауы мүмкiн болмайтын мiндеттемелердi енгiзу жалға берушiнi кредит берушiлер алдындағы тиiстi мiндеттемелерден босатпайды.
3. Кәсiпорынның қызметкерлерiне қатысты құқықтар мен мiндеттер жалға берушiден жалға алушыға Қазақстан Республикасының еңбек заңнамасында көзделген тәртiппен ауысады.
Ескерту. 573-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.05.15 . N 253 Заңымен.
574-бап. Кәсiпорынды жалдау кезiндегi кредит берушiлердiң құқықтары
1. Жалға алушыға борыштарын аударғаны туралы жалға берушi өз кредит берушiлерiн жалдау шарты жасалғанға дейiн жазбаша түрде хабардар етуге мiндеттi, олар осындай аударумен келiспеген жағдайда хабарлама алған күннен бастап үш айдың ішінде жалға берушіден тиісті мiндеттемелердi тоқтатуын немесе мерзiмiнен бұрын орындауын және залалды өтеуін талап етуге құқылы.
Егер көрсетiлген мерзiмде осы талаптардың ешқайсысы қойылмаса, кредит беруші тиiстi борышты жалға алушыға аударуға келiсiм бердi деп танылады.
2. Кәсiпорын жалға алушыға жалға берушiден мiндеттемелердi тоқтатуды немесе мерзiмiнен бұрын орындауды талап еткен кредит берушiлермен есеп айырысу аяқталғаннан кейiн ғана берiлуi мүмкiн.
3. Кәсiпорынды мүлiк кешенi ретiнде жалға бергеннен кейiн жалға берушi мен жалға алушы берiлген кәсiпорынның құрамына енгiзілген, жалға алушыға кредит берушiнiң келiсiмiнсiз аударылған борыштар бойынша бiрдей жауапты болады.
575-бап. Кәсiпорынды жалдау шартының нысаны
Ескерту. 575-баптың тақырыбына өзгеріс енгізілді - ҚР 2011.03.25 (N 421-IV алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Кәсiпорынды жалдау шарты тараптар қол қойған бiрыңғай құжат жасау жолымен жазбаша түрде жасалады.
2. Кәсiпорынды жалдау шартының нысанын сақтамау шарттың маңызсыздығына алып келеді.
3. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
Ескерту. 575-бапқа өзгерістер енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
576-бап. Жалға алынған кәсiпорынды беру
Кәсiпорынды жалға алушыға беру өткiзу актiсi бойынша жүзеге асырылады. Өткiзу актiсiн жасау мен қол қоюға ұсынуды қоса алғанда, кәсiпорынды беруге дайындау, егер шартта өзгеше көзделмесе, жалға берушiнiң мiндетi болып табылады және соның есебiнен жүзеге асырылады.
577-бап. Жалға алушының кәсiпорынды ұстау және оны пайдалану бойынша шығындарды төлеу жөнiндегi мiндеттерi
1. Кәсiпорынды жалға алушы шарттың бүкiл қолданылу мерзiмi iшiнде, егер шартта өзгеше көзделмесе, ағымдағы және күрделi жөндеудi қоса алғанда, кәсiпорынды тиiстi техникалық күйде ұстауға мiндеттi.
2. Егер шартта өзгеше көзделмесе, жалға алынған кәсiпорынды пайдалануға байланысты шығындар жалға алушыға жүктеледi.
578-бап. Жалға алынған кәсiпорынның мүлкiн пайдалану
Жалға алушы жалға берiлген кәсiпорын мүлкiнiң құрамына кiретiн материалдық қазыналарды, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, жалға берушiнiң келiсiмiнсiз сатуға, айырбастауға, уақытша пайдалануға не қарыз етiп беруге оларды қосалқы жалға өткiзуге және шарт бойынша осындай құндылықтарға қатысты өз құқықтары мен мiндеттерiн басқа тұлғаға беруге құқылы, мұндай жағдайда бұл кәсiпорынның құнын кемiтуге әкеп соқпауы және жалдау шартының басқа ережелерiн бұзбауы керек.
579-бап. Жалға алушының жалға алынған кәсiпорынға өзгерiстер мен жақсартулар енгiзуi
1. Егер кәсiпорынды жалдау шартында өзгеше көзделмесе, жалға алушы жалға берушiнiң келiсiмiнсiз жалға алынған мүлiк кешенiнiң құрамына оның құнын арттыратын өзгерiстер енгiзуге, оны қайта құруға, кеңейтуге, техникамен қайта жарақтандыруға құқылы.
2. Егер кәсiпорынды жалдау шартында өзгеше көзделмесе, кәсiпорынды жалдаушы жалға алынған мүлiктен ажыратуға болмайтын жақсарту құнының, мұндай жақсартуға жалға берушiнiң рұқсат етуiне қарамастан, өтемiн алуға құқылы.
3. Жалға берушi жалға алынған мүлiктен ажыратуға болмайтын жақсарту құнын өтеу мiндетiнен, егер ол жалға алушының осы жақсартуға шыққан шығысының жалға алынған мүлiк құнынан оның пайдаланылу қасиетiн жақсарту мөлшерiне сәйкес келмейтiндей екенiн немесе мұндай жақсартуларды жүзеге асыру кезiнде адалдық пен ақылға сыйымдылық принциптерiнiң бұзылғандығын дәлелдесе, сот арқылы босатылуы мүмкiн.
580-бап. Жалға алынған кәсiпорынды қайтару
Жалдау шарты тоқтатылған жағдайда кәсiпорын тұтастай мүлiк кешенi ретiнде осы Кодекстiң 573, 574 және 576-баптарында көзделген ережелердi сақтай отырып жалға берушiге қайтарылуға тиiс. Өткiзу актiсiн жасауды және оны қол қоюға табыс етудi қоса алғанда, кәсiпорынды жалға берушiге беруге дайындау, егер шартта өзгеше көзделмесе, бұл жағдайда жалға алушының мiндетi болып табылады және соның есебiнен жүзеге асырылады.
Параграф 4. Үйлер мен ғимараттарды жалдау
581-бап. Үйдi немесе ғимаратты жалдау шарты
1. Үйдi немесе ғимаратты жалдау шарты бойынша жалға берушi үйдi немесе ғимаратты жалға алушының уақытша иеленуiне және пайдалануына беруге мiндеттенедi.
2. Егер осы Кодекстiң кәсiпорынды жалдау туралы ережелерiнде өзгеше көзделмесе, кәсiпорындарды жалдауға осы параграфтың ережелерi қолданылады.
582-бап. Yйдi немесе ғимаратты жалдау шартының нысаны
Ескерту. 582-баптың тақырыбына өзгеріс енгізілді - ҚР 2011.03.25 (№ 421-IV алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Үйдi немесе ғимаратты жалдау шарты тараптар қол қойған бiрыңғай құжат ретiнде жазбаша нысанда жасалады.
2. Ғимаратты немесе үй-жайды жалдау шартының нысанын сақтамау оның маңызсыздығына алып келеді.
3. Алып тасталды - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
Ескерту. 582-бапқа өзгерістер енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
583-бап. Жалдау ақысының мөлшерi
1. Үйдi немесе ғимаратты жалдау шартында жалдау ақысының мөлшерi көзделуге тиiс. Тараптардың жалдау ақысының мөлшерi туралы жазбаша түрде келiскен талаптары болмаған жағдайда үйдi немесе ғимаратты жалдау шарты жасалмаған деп саналады. Бұл орайда осы Кодекстiң 385-бабының 3-тармағында көзделген баға белгiлеу ережелерi қолданылмайды.
2. Үйдi немесе ғимаратты жалдау ақысы шартта үй (ғимарат) алаңының бөлiнiсiне немесе оның көлемiнiң өзге көрсеткiшiне белгiленсе, жалдау ақысы жалға алушыға берiлген үйдiң немесе ғимараттың нақты мөлшерi негiзге алына отырып айқындалады.
584-бап. Yйдi немесе ғимаратты беру
1. Жалға берушiнiң үйдi немесе ғимаратты беруi және оны жалға алушының қабылдауы өткiзу актiсi немесе тараптар қол қоятын өткiзу туралы өзге де құжат бойынша жүзеге асырылады.
2. Үйдi немесе ғимаратты беру туралы құжатқа тараптардың бiрiнiң шартта көзделген талаптар бойынша қол қоюдан бас тартуы, тиiсiнше жалға берушiнiң мүлiктi беру жөнiндегi мiндетiн орындаудан, ал жалға алушының мүлiктi қабылдаудан бас тартуы деп қаралады.
3. Жалданған үйдi немесе ғимаратты жалдау шарты тоқтатылған жағдайда жалға алынған үй немесе ғимарат осы баптың 1 және 2-тармақтарында көзделген ережелер сақтала отырып, жалға берушiге қайтарылуға тиiс.
Параграф 5. Көлiк құралдарын жалдау
585-бап. Көлiк құралын экипажымен жалдау шарты
1. Көлiк құралын (уақытша кеме жалдау) басқару және техникалық пайдалану бойынша қызмет көрсетуiмен жалдау шарты (көлiк құралын экипажымен жалдау шарты) бойынша жалға берушi жалға алушыға ақы төлетiп көлiк құралын уақытша иелену мен пайдалануға беруге және өз күшiмен оны басқару мен техникалық пайдалану бойынша қызмет көрсетуге мiндеттi.
2. Осы тараудың жалға алушының жалдау шартын жаңа мерзімге жасасуға артықшылықты құқығы туралы және жалдау шартын белгісіз мерзімге қайта жаңарту туралы қағидалары (осы Кодекстiң 557 және 558-баптары) көлiк құралдарын экипажымен жалдау шартына қолданылмайды.
Ескерту. 585-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
586-бап. Көлiк құралын экипажымен жалдау шартының нысаны
Көлік құралын экипажымен жалдау шарты оның мерзіміне қарамастан жазбаша түрде жасалуға тиiс.
587-бап. Жалға берушiнiң көлiк құралын ұстау жөнiндегi мiндетi
Жалға берушi шарт қолданылатын бүкiл мерзiм iшiнде жалға берiлген көлiк құралын, ағымдағы және күрделi жөндеудi жүзеге асыру мен қажеттi керек-жарақтарын берудi қоса алғанда, тиiстi жағдайда ұстауға мiндеттi.
588-бап. Жалға берушiнiң көлiк құралын басқару мен техникалық пайдалану жөнiндегi мiндеттерi
1. Жалға алушыға жалға берушi берген көлiк құралын басқару мен техникалық пайдалану бойынша көрсететiн қызметiнiң көлемi шартта аталған жалдау мақсатына сәйкес оның қалыпты және қауiпсiз пайдаланылуын қамтамасыз етуге тиіс. Көлік құралын экипажымен жалдау шартында жалға алушыға көрсетiлетiн қызметтiң неғұрлым кең ауқымы көзделуі мүмкiн.
2. Көлiк құралы экипажының құрамы және оның бiлiктiлiгi тараптар үшiн мiндеттi ережелер мен шарттың жағдайларына, ал егер тараптар үшiн мiндеттi ережелермен мұндай талаптар белгiленбесе, көлiк құралының осы түрiн пайдаланудың әдеттегi практикасы талаптарына және шарттың жағдайларына сай келуге тиiс.
3. Экипаж мүшелерi жалға берушiмен еңбек қатынастарын сақтап қалады. Олар жалға берушiнiң басқару мен техникалық пайдалануға қатысты өкiмдерiне және жалға алушының көлiк құралын коммерциялық пайдалануға қатысты өкiмдерiне бағынады.
4. Егер жалдау шартында өзгеше көзделмесе, экипаж мүшелерiнiң көрсеткен қызметiне ақы төлеу жөнiндегi шығындарды, сондай-ақ оларды ұстау жөнiндегi шығындарды жалға берушi көтередi.
589-бап. Жалға берушiнiң көлiк құралын коммерциялық пайдалануға байланысты шығындарды төлеу жөнiндегi мiндетi
Егер көлiк құралын экипажымен жалға беру шартында өзгеше көзделмесе, жалға алушы жанармайға және пайдалану процесiнде жұмсалатын басқа да материалдарға ақы төлеу жөнiндегi, алымдарды төлеу жөнiндегi шығындарды және көлiк құралын коммерциялық пайдалануға байланысты туындаған басқа да шығындарды көтередi.
590-бап. Көлiк құралын сақтандыру
Егер көлiк құралын экипажымен жалдау шартында өзгеше көзделмесе, көлiк құралын сақтандыру және (немесе) ол келтiруi мүмкiн немесе оны пайдалануға байланысты келтiрiлген зиян үшiн жауапкершiлiктi сақтандыру мiндетi мұндай сақтандыру мiндеттi болып табылатын жағдайда жалға берушiге жүктеледi.
591-бап. Көлiк құралын пайдалану туралы үшiншi тұлғалармен шарт жасасу
Егер Қазақстан Республикасының заңнамалық актілерінде немесе шартта өзгеше көзделмесе, жалға алушы жалға алынған көлiк құралын коммерциялық пайдалануды жүзеге асыру шеңберiнде жалға берушiнiң келiсiмiнсiз өз атынан үшiншi тұлғалармен, егер олар жалдау шартында көрсетiлген көлiк құралдарын пайдалану мақсаттарына, ал егер мұндай мақсаттар белгiленбесе – көлiк құралының мақсатына қайшы келмесе, тасымалдау шартын және өзге де шарттар жасасуға құқылы.
Ескерту. 591-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
592-бап. Көлiк құралына келтiрiлген зиян үшiн жауапкершiлiк
Жалға алынған көлiк құралы жойылған немесе бүлiнген жағдайда, егер жалға берушi көлiк құралының жойылуы немесе бүлiнуi жалға алушы заң актiлерiне немесе шартқа сәйкес жауап беретiн мән-жайлар бойынша болғанын дәлелдесе, жалға алушы жалға берушiге келтiрiлген залалды өтеуге мiндеттi.
593-бап. Көлiк құралы келтiрген зиян үшiн жауапкершiлiк
Үшiншi тұлғаға жалға алынған көлiк құралы, оның тетiктерi, құрылғылары, жабдықтары және т.б. келтiрген зиян үшiн осы Кодекстiң 931-бабының ережелерiне сәйкес жалға алушы жауапты болады.
594-бап. Көлiк құралдарының жекелеген түрлерiн жалдаудың ерекшелiктерi
Көлiк құралдарының жекелеген түрлерiн оны басқару және техникалық пайдалану жөніндегі қызмет көрсетуімен жалдаудың осы параграфта көзделгендерден басқа ерекшелiктерi заң актiлерiмен белгіленуі мүмкiн.
Ескерту. 594-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-1-бап. Көлік құралын экипажсыз жалдау шарты
1. Көлік құралын экипажсыз жалдау шарты бойынша жалға беруші жалға алушыға көлік құралын басқару мен техникалық пайдалану бойынша қызметтерді көрсетпестен, оны уақытша иеленуге және пайдалануға ақы төлетіп береді.
2. Жалдау шартын белгісіз мерзімге қайта жаңарту және жалға алушының жалдау шартын жаңа мерзімге жасасуға (Азаматтық кодекстің 557 және 558- баптары) артықшылықты құқығы туралы қағида көлік құралын экипажсыз жалдау шартына қолданылмайды.
Ескерту. Кодекс 594-1-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-2-бап. Көлік құралын экипажсыз жалдау шартының нысаны
Көлік құралын экипажсыз жалдау шарты оның мерзіміне қарамастан, жазбаша түрде жасалуға тиіс.
Ескерту. Кодекс 594-2-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-3-бап. Жалға алушының көлік құралын күтіп ұстау жөніндегі міндеті
Егер көлік құралын экипажсыз жалдау шартында өзгеше көзделмесе, жалға алушы көлік құралын экипажсыз жалдау шартының бүкіл мерзімі ішінде ағымдағы және күрделі жөндеуді жүзеге асыруды қоса алғанда, жалға алынған көлік құралын тиісті жағдайда ұстауға міндетті.
Ескерту. Кодекс 594-3-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-4-бап. Жалға алушының көлік құралын күтіп ұстауға жұмсалатын шығыстарды төлеу жөніндегі міндеті
Егер көлік құралын экипажсыз жалдау шартында өзгеше көзделмесе, жалға алушы жалға алынған көлік құралын күтіп ұстауға, өз жауапкершілігін сақтандыруды қоса алғанда, оны сақтандыруға жұмсалатын шығыстарды, сондай-ақ оны пайдалануға байланысты туындайтын шығыстарды көтереді.
Ескерту. Кодекс 594-4-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-5-бап. Үшінші тұлғалармен жасалатын көлік құралын пайдалану туралы шарттар
Егер көлік құралын экипажсыз жалдау шартында өзгеше көзделмесе, жалға алушы көлік құралын экипажбен немесе экипажсыз жалдау шартының талаптарымен жалға алынған көлік құралын жалға берушінің келісімінсіз қосалқы жалға беруге құқылы.
Ескерту. Кодекс 594-5-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-6-бап. Көлік құралымен келтірілген зиян үшін жауаптылық
Үшінші тұлғаларға көлік құралымен, оның тетіктерімен, құрылғыларымен, жабдықтарымен келтірген зиян үшін осы Кодекстің 931-бабының қағидаларына сәйкес жалға алушы жауаптылықта болады.
Ескерту. Кодекс 594-6-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
594-7-бап. Көлік құралдарының жекелеген түрлерін жалдау ерекшеліктері
Көлік құралдарының жекелеген түрлерін оларды басқару және техникалық пайдалану бойынша қызметтерді көрсетпестен жалдау ерекшеліктері өзге де заңнамалық актілерде белгіленуі мүмкін.
Ескерту. Кодекс 594-7-баппен толықтырылды - ҚР 2011.03.25 N 421-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
Параграф 6. Прокат
595-бап. Прокат шарты
1. Прокат шарты бойынша тұрақты кәсiпкерлiк қызмет ретiнде қозғалатын мүлiктi жалға берудi жүзеге асыратын жалға берушi жалға алушыға мүлiктi ақы төлетiп уақытша иеленуге және пайдалануға беруге мiндеттенедi.
Прокат шарты бойынша берiлген мүлiк, егер шартта өзгеше көзделмесе немесе мiндеттеме мәнiнен өзгеше туындамаса, тұтыну мақсатында пайдаланылады.
2. Прокат шарты жазбаша түрде жасалады. 3. Прокат шарты жария болып табылады (осы Кодекстiң 387-бабы).
596-бап. Прокат шартының мерзiмi
1. Прокат шарты бiр жылға дейiнгi мерзiмге жасалады. 2. Жалға алушының мүлiктiк жалдау шартын жаңартуға басым құқығы
туралы және мүлiктiк жалдау шартын белгiсiз мерзiмге жаңарту туралы ережелер (осы Кодекстiң 557, 558-баптары) прокат шартына қолданылмайды.
3. Егер шартта өзгеше көзделмесе, жалға алушы прокат шартынан кез келген уақытта бас тартуға құқылы.
597-бап. Мүлiктi жалға алушыға беру
Прокат шартын жасасқан жалға берушi жалға алушының қатысуымен жалға берiлетiн мүлiктiң дұрыстығын тексеруге, сондай-ақ жалға алушыны мүлiктi пайдалану ережелерiмен таныстыруға не оған осы мүлiктi пайдалану туралы жазбаша нұсқаулықтарды беруге мiндеттi.
598-бап. Жалға берiлген мүлiктiң кемшiлiктерiн жою
Жалға алушы жалға берiлген мүлiктiң оны пайдалануға толық немесе iшiнара кедергi келтiретiн кемшiлiктерiн тапқан жағдайда, жалға алушы кемшiлiктер туралы мәлiмдеген күннен бастап он күн мерзiмде жалға берушi, егер шартта одан неғұрлым аз мерзiм белгiленбесе, мүлiктiң кемшiлiктерiн ақысыз жоюға не осы мүлiктi соған ұқсас тиiстi күйдегi басқа мүлiкпен айырбастап беруге мiндеттi .
Егер жалға берiлген мүлiктiң кемшiлiктерi жалға алушының мүлiктi пайдалану және ұстап-тұту ережелерiн бұзуы салдарынан болса, жалға алушы жалға берушiге мүлiктi жөндеу және тасымалдау құнын төлейді.
599-бап. Мүлiктi пайдаланғаны үшiн төленетiн ақы
1. Прокат шарты бойынша мүлiктi пайдаланғаны үшiн төленетiн ақы, мерзiмдiк немесе бiржолғы енгiзiлетiн, тұрлаулы сомада белгiленген төлемдер түрiнде белгiленедi.
2. Жалға алушы мүлiктi мерзiмiнен бұрын қайтарған жағдайда жалға берушi мүлiктi пайдаланғаны үшiн алған ақының тиiстi бөлiгiн оған мүлiктi нақты қайтарған күннен кейiнгi күннен бастап есептеп қайтарады.
3. (алынып тасталды) Ескерту. 599-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.03.29
. N 42 Заңымен .
600-бап. Жалға алынған мүлiктi пайдалану
1. Прокат шарты бойынша жалға берiлген мүлiктi күрделi және ағымдағы жөндеу жалға берушiнiң мiндетi болып табылады.
2. Прокат шарты бойынша жалға алушыға берілген мүлікті қосымша жалға беруге, жалға алушының прокат шарты бойынша өз құқықтары мен мiндеттерiн басқа тұлғаға беруiне, осы мүлiктi тегiн пайдалануға беруге, жалға алушының құқықтарын кепiлге салуға және оларды шаруашылық серіктестіктеріне, акционерлік қоғамдарға мүлік салымы, өндiрiстiк кооперативтерге жарна ретiнде енгiзуге жол берiлмейдi.
30-тарау. Тұрғын үйді жалдау
601-бап. Тұрғын үйдi жалдау шарты
1. Тұрғын үйдi жалдау шарты бойынша тұрғын үйдiң иесi немесе оның уәкiлеттi адамы (жалға берушi) азаматқа (жалға алушыға) және оның отбасы мүшелерiне тұрғын үйдi ақы төлеп пайдалануға беруге мiндеттенедi.
2. Тұрғын үйдi жалдау шарты жазбаша түрде жасалуға тиiс. Ескерту. 601-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
602-бап. Мемлекеттiк тұрғын үй қорындағы тұрғын үйдi жалдау шарты
1. Мемлекеттiк тұрғын үй қорындағы тұрғын үйлердi жалдау шарты жергiлiктi атқарушы органның, мемлекеттік мекеменің немесе мемлекеттік кәсіпорынның тұрғын үй беру туралы шешiмi негiзiнде жасалады.
2. Тұрғын үйдi беру талаптары, тараптардың құқықтары мен мiндеттерi, мемлекеттiк тұрғын үй қорындағы тұрғын үйдi жалдау шартын өзгерту мен бұзу негiздерi тұрғын үй заңдарында белгiленедi.
Ескерту. 602-бапқа өзгеріс енгізілді - ҚР 2011.07.22 № 479-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
603-бап. Жекеше тұрғын үй қорындағы тұрғын үйдi жалдау шарты
Жекеше тұрғын үй қорындағы тұрғын үйдi жалдау талаптары, егер тұрғын үй заңдарында өзгеше көзделмесе, тараптардың келiсiмiмен белгiленедi.
31-тарау. Мүлікті тегін пайдалану
604-бап. Мүлiктi тегiн пайдалану шарты
1. Мүлiктi тегiн пайдалану шарты (несие шарты) бойынша бiр тарап (несие берушi) екiншi тарапқа (несие алушыға) мүлiктi тегiн уақытша пайдалануға бередi, ал соңғысы мүлiктiң қалыпты тозуын ескере отырып, қандай күйде алса, сондай күйде немесе шартта ескертілген күйде қайтаруға мiндеттенедi.
2. Мүлiктi тегiн пайдалану шартына тиiсiнше осы Кодекстiң 541-бабының, 545-бабының 1-тармағының және 2-тармағының бiрiншi бөлiгiнiң, 550-бабының, 555-бабының, 556-бабының 2-тармағының 1), 2), 4) тармақшаларының, 558- бабының ережелерi қолданылады.
3. Мемлекеттік мүлікті өтеусіз пайдалану шартына Қазақстан Республикасының мемлекеттік мүлік туралы заңнамалық актісінде және Қазақстан Республикасының өзге де заңнамалық актілерінде белгіленген ерекшеліктерге қоса осы Кодекстің ережелері қолданылады.
Ескерту. 604-бапқа өзгерту енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
605-бап. Несие берушi
1. Мүлiктi тегiн пайдалануға беру құқығы оның меншiк иесiне және соған заң актiлерi немесе меншiк иесi уәкiлдiк берген өзге адамдарға берiледi.
2. Коммерциялық ұйымның өз құрылтайшысы, қатысушысы, (акционерi), директоры, өзiнiң басқару немесе бақылау органдарының мүшесi болып табылатын адамға мүлiктi тегiн пайдалануға беруге құқығы жоқ.
606-бап. Мүлiктi тегiн пайдалануға беру
1. Несие берушi мүлiктi тегiн пайдалану шартының талаптары мен мүлiктiң мақсатына сай келетiн күйде беруге мiндеттi.
2. Егер шартта өзгеше көзделмесе, мүлiк тегiн пайдалануға оның барлық керек-жарақтарымен және оған қатысты құжаттармен (мүлiктiң жиынтықтылығын, қауiпсiздiгiн, сапасын, пайдалану тәртiбiн куәландыратын және т.б. құжаттармен) қоса берiледi.
Егер мұндай керек-жарақтар мен құжаттар берiлмесе, алайда оларсыз мүлiктi мақсаты бойынша пайдалану мүмкiн болмаса не оны пайдалану несие алушы үшiн едәуiр дәрежеде құнын жойса, соңғысы сондай керек-жарақтар мен құжаттар берудi немесе шартты бұзуды және өзiне келтiрiлген нақты зиянды өтеудi талап етуге құқылы.
607-бап. Тегiн пайдалануға берiлген мүлiктiң кемшiлiктерi үшін жауапкершілік
1. Мүлікті тегін пайдалануға берген несие беруші мүлікті беру кезінде қасақана немесе өрескел абайсыздықпен айтпай қалған осы мүлiк кемшiлiктерi үшін, егер бұл орайда несие алушыға нақты зиян келсе, жауапты болады.
2. Несие алушының талаптары туралы немесе оның мүлiктiң кемшiлiктерiн несие берушiнiң есебiнен жою ниетi туралы хабарландырылған несие берушi ақаулы затты тиiстi күйдегi соған ұқсас басқа затпен дереу ауыстыра алады.
3. Несие берушi мүлiктiң шарт жасаған кезде өзi айтқан кемшiлiктерi үшiн немесе несие алушыға алдын ала белгiлi болған не несие алушы шарт жасаған кезде немесе затты берген кезде мүлiктi қараған немесе оның дұрыстығын тексерген уақытта табылған кемшiлiктер үшiн жауап бермейдi.
608-бап. Тегiн пайдалануға берiлген мүлiкке үшiншi тұлғалардың құқықтары
Мүлiктi тегiн пайдалануға беру бұл мүлiкке үшiншi тұлғалардың құқықтарын өзгертуге немесе тоқтатуға негiз болмайды.
Тегiн пайдалану шартынба жасаған кезде несие берушi несие алушыға бұл мүлiкке үшiншi тұлғалардың барлық құқықтары (сервитут, кепіл құқығы және т.б) туралы Ескертуге міндетті. Бұл міндетті орындамау несие алушыға шартты бұзуды және өзi шеккен нақты зиянды өтеудi талап ету құқығын бередi.
609-бап. Несие алушының мүлiктi ұстау жөнiндегi мiндеттерi
Несие алушы тегiн пайдалануға алған мүлiктi, егер тегiн пайдалану шартында өзгеше көзделмесе, ағымдағы және күрделi жөндеудi жүзеге асыруды қоса
алғанда, дұрыс күйінде ұстап-тұтуға және оны ұстап-тұту жөнiндегi барлық шығындарды өтеуге мiндеттi.
610-бап. Мүлiктiң кездейсоқ жойылу немесе кездейсоқ бүлiну қаупi
Егер мүлiк оны несие алушы, тегiн пайдалану шартына немесе мүлiктi мақсатына сай пайдаланбағандықтан жойылса немесе бүлiнсе не оны несие берушiнiң келiсiмiнсiз үшiншi тұлғаға берсе, ол тегін пайдалануға алған мүлiктiң кездейсоқ жойылу немесе кездейсоқ бүлiну қаупiн өз мойнына алады.
Егер несие алушы нақты мән-жайларды ескере отырып, өз мүлкiн құрбан етiп , мүлiктiң жойылуына немесе бүлiнуiне жол берiлмеуi мүмкiн болып, бiрақ өз мүлкiн сақтап қалуды жөн көрсе, ол мүлiктiң кездейсоқ жойылу немесе бүлiну қаупiн де мойнына алады.
611-бап. Мүлiктi пайдалану нәтижесiнде үшiншi тұлғаға келтiрiлген зиян үшiн жауапкершiлiк
Егер несие алушының немесе бұл мүлiк несие берушiнiң келiсiмiмен қолына тиген адамның зиянды қасақана немесе өрескел бейқамдықпен келтiргенiн дәлелдей алмаса, мүлiктi пайдалану салдарынан үшiншi тұлғаға келтiрiлген зиян үшiн несие берушi жауап береді.
612-бап. Шартты мерзiмiнен бұрын бұзу
1. Несие берушi тегiн пайдалану шартын мерзiмiнен бұрын бұзуды несие алушы:
1) мүлiктi шартқа немесе мақсатына сәйкес пайдаланбаған; 2) мүлiктi дұрыс күйiнде сақтау немесе оны ұстап-тұту жөнiндегi мiндеттерiн
орындамаған; 3) мүлiктiң жай-күйiне елеулі түрде нашарлатқан; 4) несие берушiнiң келiсiмiнсiз мүлiктi үшiншi тұлғаға берген жағдайларда талап етуге құқылы. 2. Несие алушы:
1) мүлiктi қалыпты пайдалануды мүмкiн етпейтiн немесе ауырлататын кемшiлiктерiн тапқан кезде, олардың бар екенi туралы шарт жасасу кезiнде бiлмеген және бiлуі мүмкiн болмаса;
2) егер мүлiк ол жауап бермейтiн мән-жайларға байланысты пайдалануға жарамсыз күйде болса;
3) егер шартты жасау кезiнде несие берушi оған берiлген мүлiкке үшiншi тұлғалардың құқықтары туралы ескертпесе;
4) несие берушi мүлiктi беру не оның керек-жарақтары мен оған қатысты құжаттарды беру мiндетiн орындамаса, тегiн пайдалану шартын мерзiмiнен бұрын бұзуды талап етуге құқылы.
613-бап. Шарттан бас тарту
1. Тараптардың әрқайсысы мерзiмi көрсетiлмей жасалған тегiн пайдалану шартынан, егер шартта хабарлаудың өзге мерзiмi көзделмесе, бұл туралы басқа тарапқа бiр ай iшiнде хабарлап, кез келген уақытта бас тартуға құқылы.
2. Егер шартта өзгеше көзделмесе, несие алушы мерзiмiн көрсетiп жасалған шарттан, осы баптың 1-тармағында көзделген тәртiппен, кез келген уақытта бас тартуға құқылы.
614-бап. Шарттағы тараптардың өзгеруi
1. Несие берушi мүлiкке иелiктен айыруды жүргiзуге немесе оны үшiншi тұлғаға тегiн пайдалану үшiн беруге құқылы. Бұл орайда жаңа меншiк иесiне немесе пайдаланушыға бұрын жасалған тегiн пайдалану шартынан құқықтар ауысады, ал оның мүлiкке қатысты құқықтарына несие алушының құқықтары қосылады.
2. Несие берушi азамат қайтыс болған не несие берушi заңды тұлға қайта ұйымдастырылған немесе таратылған жағдайда несие берушiнiң құқықтары мен мiндеттерi тегiн пайдалану шарты бойынша мұрагерге (құқық мирасқорына) немесе мүлiкке меншiк құқығы немесе мүлiк тегiн пайдалануға берiлген деп негiзге алынған өзге құқық ауысқан басқа тұлғаға көшедi.
Несие алушы - заңды тұлға қайта ұйымдастырылған жағдайда, егер шартта өзгеше көзделмесе, оның құқықтары мен мiндеттерi шарт бойынша оның құқық мирасқоры болып табылатын заңды тұлғаға көшедi.
615-бап. Шартты тоқтату
Тегiн пайдалану шарты, егер шартта өзгеше көзделмесе, несие алушы азамат қайтыс болған немесе несие алушы заңды тұлға таратылған жағдайда тоқтатылады.
32-тарау. Мердігерлік Параграф 1. Мердiгерлiк туралы жалпы ережелер
616-бап. Мердiгерлiк шарты
1. Мердiгерлiк шарты бойынша бiр тарап (мердiгер) екiншi тараптың ( тапсырысшының) тапсырмасы бойынша белгiлi бiр жұмысты атқаруға және белгiленген мерзiмде оның нәтижесiн тапсырысшыға өткiзуге мiндеттенедi, ал тапсырысшы жұмыс нәтижесiн қабылдап алуға және оған ақы төлеуге ( жұмыстың бағасын төлеуге) мiндеттенедi. Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, жұмыс мердiгердiң тәуекелiмен орындалады.
2. Егер шартта өзгеше көзделмесе, мердiгер тапсырысшының тапсырмасын орындау әдiстерiн дербес айқындайды.
3. Мердiгерлiк шартының жекелеген түрлерiне (тұрмыстық мердiгерлiк, құрылыс мердiгерлiгi, жобалау немесе iздестiру жұмыстарына мердiгерлiк, ғылыми-зерттеу, тәжiрибелiк-конструкторлық және технологиялық жұмыстарға мердiгерлiк), егер осы Кодекстiң бұл түрлер туралы ережелерінде өзгеше белгіленбесе, осы параграфта көзделген ережелер қолданылады.
4. Мердiгерлiк шартының жекелеген түрлерi бойынша қатынастар осы Кодекспен қатар мердiгерлiк шартының жекелеген түрлерi туралы заң актiлерiмен де реттеледi.
617-бап. Жұмысты мердiгердiң қарамағында орындау
1. Егер шартта өзгеше көзделмесе, жұмыс мердiгердiң қарамағында: соның материалдарымен, күштерiмен және қаражатымен орындалады.
2. Мердiгер өзi берген материалдар мен жабдықтардың сапасы лайықсыз болғаны үшiн, сондай-ақ үшiншi тұлғалардың құқықтары қосылған материалдар мен құралдарды бергенi үшiн жауапты болады.
618-бап. Материалдардың кездейсоқ жойылу қаупi
Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, мердiгер шартта белгiленген жұмысты тапсыру мерзiмi басталғанға дейiн материалдардың кездейсоқ жойылу немесе кездейсоқ бүлiну қаупiн материалдарды берген тарап мойнына алады.
Жұмыс нәтижесiн беру немесе қабылдау уақытын өткiзiп алған кездегi тәуекелдi, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, уақытты өткiзiп алған тарап мойнына алады.
619-бап. Бас мердiгер және қосалқы мердiгер
1. Егер заң актiлерiнен немесе шарттан өзгеше туындамаса, мердiгер шартты орындауға басқа тұлғаларды (қосалқы мердiгерлердi) тартуға құқылы. Мұндай
жағдайда мердiгер - тапсырысшының алдында бас мердiгер, ал қосалқы мердiгердiң алдында тапсырысшы болады.
2. Бас мердiгер қосалқы мердiгердiң алдында тапсырысшының мiндеттеменi орындамағаны немесе тиiстi дәрежеде орындамағаны үшiн жауапты, ал тапсырысшының алдында қосалқы мердiгердiң мiндеттеменi орындамағаны немесе тиiстi дәрежеде орындамағаны үшiн жауапты болады.
3. Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, тапсырысшы мен қосалқы мердiгер бiр-бiрiне өздерiнiң бас мердiгермен арадағы шарттарды бұзуына байланысты талаптар қоюға құқығы жоқ.
4. Бас мердiгердiң келiсiмiмен тапсырысшы жекелеген жұмыстарды орындауға үшiншi тұлғалармен шарт жасасуға құқылы. Мұндай жағдайда үшiншi тұлға жұмысты орындамағаны немесе тиiстi дәрежеде орындамағаны үшiн тiкелей тапсырысшының алдында жауапты болады.
5. Егер шарт бiр мезгiлде екi немесе одан да көп мердiгермен жасалса және мiндеттеме нысанасы бөлiнбейтiн болса, мердiгерлер тапсырысшыға қатысты ортақтасқан борышқорлар және тиiсiнше ортақтасқан кредит берушiлер болып танылады. Мiндеттеме нысанасы бөлiнетiн жағдайда, сондай-ақ заң актiлерiнде немесе тараптардың келiсiмiнде көзделген басқа да жағдайларда мердiгерлердiң әрқайсысы құқықтарға ие болып, тапсырысшыға қатысты өз үлесiнiң шегiнде мiндеттемелердi мойнына алады.
620-бап. Жұмыстың орындалу мерзiмдерi
1. Мердiгерлiк шартта жұмысты орындаудың бастапқы және түпкi мерзiмi көрсетiледi. Тараптардың арасындағы келiсiм бойынша шартта жұмыстың жекелеген кезеңдерiнiң аяқталу мерзiмдерi (аралық мерзiмдерi) де көзделуi мүмкiн.
Егер шартта өзгеше көзделмесе, мердiгер жұмысты орындаудың бастапқы және түпкi, сонымен қатар аралық мерзiмдерiнiң бұзылғаны үшiн жауапты болады.
2. Жұмыс орындаудың мердiгерлiк шартта көрсетiлген бастапқы, түпкi және аралық мерзiмдерi шартта көзделген жағдайлар мен тәртiп бойынша өзгертілуі мүмкін.
621-бап. Жұмыстың бағасы
1. Мердiгерлiк шартта орындалуға жататын жұмыстың бағасы немесе оны анықтау әдiстерi көрсетiледi. Шартта мұндай нұсқаулар болмаған және тараптар
келiсiмге келмеген жағдайда бағаны тараптарға келтiрiлген қажеттi шығындарды ескере отырып, әдетте осыған ұқсас жұмыстарға қолданылатын бағаларды негiзге алу арқылы сот белгiлейдi.
2. Жұмыстың бағасы смета жасау жолымен белгiленуi мүмкiн. Жұмыс мердiгер жасаған сметаға сәйкес орындалған жағдайларда смета
күшке ие болып, тапсырысшы оны растаған кезден бастап шарттың бiр бөлiгiне айналады.
Жұмыстың бағасы (смета) шамамен алынған немесе тұрлаулы болуы мүмкiн. Шартта басқа нұсқаулар болмаған кезде жұмыстың бағасы (смета) тұрлаулы деп есептеледi.
3. Егер қосымша жұмыс жүргiзу және осы себептен жұмыстың шамамен белгiленген бағасын (шамамен алынған сметаны) елеулi түрде өсiру қажет бола қалса, мердiгер бұл туралы тапсырысшыға уақытылы Ескертуге және жұмысты тоқтата тұруға мiндеттi. Жұмыстың бағасын (сметаны) өсiруге келiспеген тапсырысшы шарттан бас тартуға құқылы. Мұндай жағдайда мердiгер өзiне тапсырысшыдан жұмыстың орындалған бөлiгiнiң бағасын төлеудi талап ете алады.
4. Шартта көрсетiлген бағаны (сметаны) өсiру қажеттiгi туралы тапсырысшыға уақытылы ескертпеген мердiгер жұмысқа шартта белгiленген баға бойынша ақы төлеу құқығын сақтай отырып, шартты орындауға мiндеттi.
5. Мердiгер тұрлаулы бағаны (тұрлаулы сметаны) көбейтудi, ал тапсырысшы оны азайтуды, оның iшiнде шартты жасау кезiнде орындалуға тиiс жұмыстардың толық көлемiн немесе бұл үшiн қажеттi шығындарды қарастыру мүмкiндiгi болмаған жағдайда да талап етуге құқығы жоқ.
Шарт жасасқаннан кейiн мердiгер беруге тиiстi материалдар мен жабдықтардың, сондай-ақ оған үшiншi тұлғалар көрсететiн қызметтердің құны едәуiр өскен кезде мердiгердiң белгiленген бағаны (сметаны) көбейтудi, ал тапсырысшы бұл талапты орындаудан бас тартқан жағдайда шартты бұзуды талап етуге құқығы бар.
622-бап. Мердiгердiң үнемi
1. Мердiгердiң нақты шығыны бағаны белгiлеу (сметаны жасау) кезiнде есептелгеннен кем болып шыққан жағдайда, егер тапсырысшы мердiгер алған үнем орындалған жұмыстың сапасына терiс әсер еткенiн дәлелдей алмаса, мердiгер шартта (сметада) көзделген баға бойынша жұмысқа ақы алу құқығын сақтайды.
2. Мердiгерлiк шартта мердiгер алған үнемдi тараптар арасында бөлу көзделуi мүмкiн.
623-бап. Жұмысқа ақы төлеу тәртiбi
1. Егер мердiгерлiк шартта орындалған жұмысқа немесе оның жекелеген кезеңдерiне алдын ала ақы төлеу көзделмесе, тапсырысшы мердiгерге жұмыс тиiстi түрде және келiсiлген мерзiмде, не тапсырысшының келiсiмiмен - мерзiмiнен бұрын орындалған жағдайда жұмыстың нәтижесiн түпкiлiктi тапсырғаннан кейiн келiсiлген бағаны төлеуге мiндеттi.
2. Мердiгер заң актiлерiнде немесе шартта көрсетiлген жағдайлар мен мөлшерде ғана аванс не кепiлпұл төлеудi талап етуге құқылы.
624-бап. Ұстап қалу құқығы
1. Шарттың орындалуына байланысты мердiгерге тиесiлi белгiленген бағаны не өзге соманы төлеу мiндетiн тапсырысшы орындамаған жағдайда мердiгердiң жұмыс нәтижесiн ұстап қалуға, сондай-ақ затты өңдеуге берiлген тапсырысшыға тиесiлi жабдықтарды, қолданылмаған материалдардың қалдықтарын және өзiнде тапсырысшының басқа да қалып қойған мүлкін тапсырысшы тиісті сомасын төлегенше ұстап қалуға құқығы бар.
2. Тапсырысшының осы кодекстiң 630-бабында көзделген мерзiм шегiнде байқаған кемшiлiктердi жою жөнiндегi шығындарды жабу үшiн мердiгерге тиесiлi сыйақының бiр бөлiгiн ұстап қалуы шартта көзделуi мүмкiн.
625-бап. Жұмысты тапсырысшының материалдарын пайдалана отырып орындау
1. Мердiгер тапсырысшы берген материалды үнемдеп және есеппен пайдалануға, жұмыс аяқталғаннан кейiн тапсырысшыға жұмсалған материалдар туралы есеп беруге, сондай-ақ олардың қалдықтарын қайтарып беруге не тапсырысшының келiсiмiмен, мердiгерде қалған пайдаланылмаған материалдың құнын ескере отырып, жұмыстың бағасын кемiтуге мiндеттi.
2. Мердiгер тапсырысшы берген материалдардың кемшiлiктерi себептi тиістi дәрежеде орындалмаған жұмыс үшiн, егер ол осы материалдарды тиiстi қабылдау кезiнде оның кемшiлiктердi анықтауы мүмкiн болмағанын дәлелдей алмаса, жауапты болады.
626-бап. Тапсырысшы берген мүлiктiң сақталмағаны үшiн мердiгердiң жауаптылығы
Мердiгерлiк шартты орындауға байланысты мердiгердiң иелiгiне өткен заттарды немесе өзге де мүлiктi өңдеу үшiн тапсырысшы берген материалдардың , жабдықтардың сақталмағаны үшiн мердiгер жауапты болады.
627-бап. Тапсырысшының жұмыстарды орындау кезiндегi құқықтары
1. Тапсырысшы мердiгердiң қызметiне араласпай, кез келген уақытта жұмыстың барысы мен сапасын тексеруге құқылы.
2. Егер мердiгер шартты орындауға уақытылы кiрiспесе немесе жұмысты соншалықты баяу орындап, оны мерзiмiнде аяқтау көрiнеу мүмкiн болмаса, тапсырысшы шарттан бас тартуға және шеккен залалдарын өтеудi талап етуге құқылы.
3. Егер жұмыстың орындалу барысында оның тиiстi дәрежеде орындалмайтыны анық болса, тапсырысшы мердiгерге кемшiлiктердi жою үшiн қисынды мерзiм белгiлеуге және мердiгер белгiленген мерзiмде ол талапты орындамаған жағдайда шарттан бас тартуға не жұмысты түзетудi мердiгердiң есебiнен үшiншi тұлғаға тапсыруға, сондай-ақ залалдарын өтеудi талап етуге құқылы.
4. Егер шартта өзгеше көзделмесе, тапсырысшы жұмысты өзiне өткiзгенге дейiн кез келген уақытта мердiгерге тапсырысшының шарттан бас тартқаны туралы хабарлама алғанға дейін орындаған жұмысы үшiн ақы төлеп, мердiгерлiк шарттан бас тарта алады. Тапсырысшы мердiгерге орындалған жұмыс үшiн төленген бағаның бөлiгi мен барлық жұмыс үшiн белгiленген бағаның арасындағы айырма шегiнде шарттың тоқтатылуынан келтiрiлген залалды өтеуге де мiндеттi.
628-бап. Мердiгер тапсырысшыға Ескертуге мiндеттi мән-жайлар
1. Мердiгер: 1) тапсырысшы берген материалдардың, жабдықтардың, техникалық
құжаттаманың немесе өңдеуге берiлген заттың жарамсыздығы немесе сапасыздығы;
2) оның жұмысты атқару әдiсi туралы нұсқауларын орындаудан тапсырысшы үшiн болуы ықтимал қолайсыз салдарлар;
3) орындалатын жұмыс нәтижелерiнiң жарамдылығына немесе берiктiгiне қауiп туғызатын не оны мерзiмiнде аяқтауға мүмкiндiк бермейтiн мердiгерге қатысты емес өзге де мән-жайлар анықталған жағдайда тапсырысшыға дереу ескертiп, одан нұсқау алғанға дейiн жұмысты тоқтата тұруға мiндеттi.
2. Осы баптың 1-тармағында аталған мән-жайлар туралы тапсырысшыға ескертпеген, не Ескертуге жауап алу үшiн қисынды мерзiмнiң аяқталуын
күтпестен немесе жұмысты тоқтата тұру туралы тапсырысшының уақытылы нұсқауына қарамастан жұмысты жалғастырған мердiгердiң өзiне немесе өзi тапсырысшыға тиiстi талаптар қойған кезде аталған мән-жайларға сiлтеме жасауға құқығы жоқ.
3. Егер тапсырысшы осы баптың 1-тармағында аталған мән-жайлар туралы мердiгер тарапынан уақытылы және негiзделген Ескерту алғанына қарамастан, қисынды мерзiмде жарамсыз және сапасыз материалды ауыстырмаса, жұмысты орындау әдiсi туралы нұсқауды өзгертпесе немесе жұмыстың жарамдылығына немесе берiктiгiне қауiп төндiретiн мән-жайларды жою үшiн басқа да қажеттi шаралар қолданбаса, мердiгер шарттан бас тартуға және оның тоқтатылуынан келтiрiлген залалдарды өтеудi талап етуге құқылы.
629-бап. Тапсырысшының жәрдем көрсетуi
1. Тапсырысшы мердігерлiк шартта көзделген көлем мен тәртiп бойынша мердiгерге жұмыстың орындалуына жәрдем көрсетуге мiндеттi.
Тапсырысшы бұл мiндеттi орындамаған жағдайда мердiгер бос тұрыс не жұмыстың орындалу мерзiмiн ауыстыру не жұмыстың бағасын көтеру туғызған қосымша шығындарды қоса алғанда, келтiрiлген зиянды өтеудi талап етуге құқылы.
2. Мердiгерлiк шарт бойынша жұмысты орындау тапсырысшының iс-әрекетiнiң немесе қателiктерiнiң салдарынан мүмкiн болмаған жағдайларда мердiгер жұмыстың орындалған бөлiгiн ескере отырып, өзiне белгiленген бағаны төлетiп алу құқығын сақтайды.
630-бап. Тапсырысшының орындалған жұмысты қабылдауы
1. Тапсырысшы мердігерлiк шартта көзделген мерзiмде және тәртiппен орындалған жұмыстың нәтижесiн мердігердiң қатысуымен қарауға және қабылдауға, ал шарттан жұмысты нашарлататын ауытқулар немесе жұмыста өзге де кемшiлiктер анықталған жағдайда бұл туралы мердiгерге дереу мәлiмдеуге мiндеттi.
2. Жұмысты қабылдау кезiнде ондағы кемшiлiктердi анықтаған тапсырысшы, егер актiде не қабылдауды куәландыратын өзге де құжатта ол кемшiлiктер не оларды жою туралы кейiн талап қойылу мүмкiндiктерi айтылған жағдайда ғана оларға сiлтеме жасауға құқылы.
3. Жұмыстың нәтижесiн тексерусiз қабылдаған тапсырысшы оны қабылдаудың әдеттегi әдiсi кезiнде анықталуы мүмкiн жұмыс кемшiлiктерiне ( көрiнеу кемшiлiктер) сiлтеме жасау құқығынан айрылады.
4. Жұмыс нәтижесiн қабылдағаннан кейiн әдеттегi қабылдау әдiсi кезiнде анықталуы мүмкiн емес (жасырын кемшiлiктер), оның iшiнде мердiгер қасақана жасырған шарттан ауытқуды немесе өзге де кемшiлiктердi анықтаған тапсырысшы олар анықталғаннан кейін қисынды мерзiмде бұл туралы мердiгерге хабарлауға мiндеттi.
5. Тапсырысшы анықтаған жасырын кемшiлiктер туралы мердiгерге хабарлау үшiн шектi мерзiм - бiр жыл, ал үйлер мен ғимараттарға байланысты жұмыстарға қатысты, сондай-ақ жұмыс түрiне тәуелсiз -
мердiгердiң қасақана жасырған кемшiлiктерiне қатысты - жұмысты қабылдаған күннен бастап үш жыл болып табылады.
Заң актiлерiнде немесе шартта неғұрлым ұзақ мерзiмдер (кепiлдiк мерзiмдер) белгiленуi мүмкiн.
Егер шартқа сәйкес тапсырысшы жұмысты бөлiп-бөлiп қабылдаса, осы тармақта белгiленген мерзiм жұмыстың нәтижелерiн тұтасымен қабылдаған күннен басталады.
6. Тапсырысшы мен мердігердің арасында орындалған жұмыстың кемшіліктері немесе олардың себептерi жөнiнде дау туған кезде тараптардың кез келгенiнiң талап етуi бойынша сараптама тағайындалуға тиiс. Сараптама шартты бұзушылық немесе мердiгердiң iс-әрекетi мен анықталған кемшiлiктердiң арасында себептi байланыстар жоқ екенiн анықтаған жағдайларды қоспағанда, сараптаманы өткiзу жөнiндегi шығындарды мердiгер көтередi. Бұл жағдайларда сараптама жөнiндегi шығындарды оны тағайындауды талап еткен тарап, ал егер сараптама тараптардың арасындағы келiсiм бойынша тағайындалса - екi тарап тең көтередi.
7. Тапсырысшы орындалған жұмыстың нәтижелерiн қабылдаудан жалтарған жағдайда, егер шартта өзгеше көзделмесе, мердiгер шартқа сәйкес жұмыс тапсырысшыға өткiзуге тиiстi күннен бастап бiр ай өткен соң және тапсырысшыға бұдан кейiн екi мәрте ескерткеннен кейiн жұмыстың нәтижесiн сатуға, ал алынған соманы мердiгерге тиесiлi барлық төлемдердi шегерiп, нотариус депозитiне тапсырысшының атына салуға құқылы.
8. Егер тапсырысшының орындалған жұмыс нәтижелерiн қабылдаудан жалтаруы жұмысты тапсыруды кешiктiруге әкеп соқса, дайындалған (өңделген) затқа меншiк құқығы өткiзiлген кезден тапсырысшыға көштi деп танылады.
631-бап. Мердiгерлiк нысанасы жойылған немесе жұмысты аяқтау мүмкiн болмаған жағдайдағы тараптар арасындағы есеп айырысу
Егер мердiгерлiк нысанасы оны тапсырғанға дейiн кездейсоқ жойылса немесе жұмысты аяқтаудың мүмкiн болмауы тараптардың кiнәсiнен болмаса, мердiгердiң жұмыс үшiн сыйақы талап етуге құқығы жоқ.
Егер мердiгерлiк нысанасының жойылуы немесе жұмысты аяқтаудың мүмкiн болмауы тапсырысшы жеткiзген материал кемшiлiктерiнiң немесе оның жұмысты орындау әдiсi туралы өкiмдерiнiң салдарынан болса, не тапсырысшы орындалған жұмысты қабылдаудың мерзiмiн өткiзiп алғаннан кейiн болса, оның үстiне мердiгер осы Кодекстiң 628-бабы ережелерiн сақтаған болса, мердiгер жұмыс үшiн сыйақы алу құқығын сақтап қалады.
632-бап. Жұмыстың сапасы
1. Мердiгер орындаған жұмыс шарт ережелерiне, ал олар болмаған немесе толық болмаған жағдайда - әдетте тиiстi тектес жұмысқа қойылатын талаптарға сай болуы тиiс.
2. Егер заң актiлерiнде немесе оларда белгiленген тәртiпте мердiгерлiк шарты бойынша орындалатын жұмысқа мiндеттi талаптар көзделсе, кәсiпкер ретiнде iс-әрекет етушi мердiгер жұмысты осы мiндеттi талаптарды сақтай отырып орындауға мiндеттi.
Мердiгер белгiленген мiндеттi талаптармен салыстырғанда, сапаға қойылатын неғұрлым жоғары талаптарға сай келетiн жұмысты орындау мiндетiн шарт бойынша өзiне алуы мүмкiн.
633-бап. Жұмыс сапасына кепiлдiк
1. Заң актiлерiнде немесе шартта мердiгердiң тапсырысшыға жұмыс сапасына кепiлдiк беруi көзделген жағдайда мердiгер тапсырысшыға бүкiл кепiлдiк мерзiмiнiң iшiнде осы Кодекстiң 632-бабының талаптарына сай болуға тиiс жұмыс нәтижесiн беруге мiндеттi.
2. Жұмыс нәтижесiнiң сапасына кепiлдiк, егер шартта өзгеше көзделмесе, жұмыс нәтижесiн құрайтын барлық элементтерге қолданылады.
634-бап. Кепiлдiк мерзiмiн есептеу тәртiбi
Егер мердiгерлiк шартта өзгеше көзделмесе, кепiлдiк мерзімі орындалған жұмыс нәтижесiн тапсырысшы қабылдаған немесе қабылдауға тиiс болған кезден басталады.
635-бап. Мердiгердiң жұмыс сапасының тиiстi дәрежеде болмауы үшiн жауапкершiлiгi
1. Егер жұмысты мердiгер шарттан жұмысты нашарлататын ауытқулармен немесе оны шартта көзделген не шартта тиiстi ережелер болмаған кезде - әдеттегi пайдалану үшiн оларды жарамсыз ететiн өзге де кемшiлiктермен орындаса, заң актiлерiнде немесе шартта өзгеше белгiленбегендiктен, тапсырысшы өз таңдауы бойынша мердiгерден:
1) қисынды мерзiмде жұмыстың кемшiлiктерiн өтемсiз жоюды; 2) жұмыс үшiн белгiленген бағаны мөлшерлес азайтуды;
3) тапсырысшының кемшiлiктердi жою құқығы шартта көзделсе, өзiнiң оларды жоюға шыққан шығыстарын өтеудi талап етуге құқылы.
2. Мердiгер өзi жауап беретiн жұмыстың кемшiлiктерiн жоюдың орнына, тапсырысшыға орындаудың мерзiмiн өткiзiп алу арқылы келтiрген зиянды өтей отырып, жұмысты тегiн қайта орындауға құқылы. Бұл жағдайда тапсырысшы, егер жұмыс сипаты бойынша ондай қайтарып беру мүмкiн болса, оған бұрын тапсырылған жұмыс нәтижесiн мердiгерге қайтарып беруге мiндеттi.
3. Егер жұмыста шарттың талаптарынан ауытқу немесе жұмыстың өзге де кемшiлiктерi елеулi және жоюға келмейтiн болса не анықталған кемшiлiктер тапсырысшы белгiлеген қисынды мерзiмде жойылмаса, тапсырысшы шарттан бас тартуға және келтiрiлген залалдарды өтеудi талап етуге құқылы.
4. Шартта белгiлi бiр кемшiлiктерi үшiн мердiгердi жауаптылықтан босату көзделуi мүмкiн. Егер тапсырысшы кемшiлiктер мердiгердiң кiнәлi iс-әрекетiнiң немесе әрекетсiздiгiнiң салдарынан пайда болғандығын дәлелдесе, аталған ереже қолданылмайды.
5. Жұмысты орындау үшiн материалдар берген мердiгер олардың сапасы үшiн сатушының сапасы лайықсыз тауарлар үшiн жауаптылығы туралы ережелер бойынша жауап бередi (осы Кодекстiң 428-бабы 1-тармағының 1), 3) және 5) тармақшалары).
636-бап. Жұмыс сапасының лайықсыздығы туралы талап арыздар жөнiндегi мерзiмнiң ескiруi
Мердiгерлiк шарт бойынша орындалған жұмыс сапасының лайықсыз болуынан туындаған талаптар үшiн талап арыз қою мерзiмiнiң өтуi тапсырысшы осы Кодекстiң 630-бабында көзделген мерзiм шегiнде мәлiмдеген кемшiлiктер анықталған күннен басталады.
637-бап. Мердiгердiң тапсырысшыға ақпарат беру мiндетi
Мердiгер тапсырысшыға жұмыстың нәтижесiмен бiрге, егер бұл шартта көзделсе немесе ақпараттың сипаты, онысыз жұмыстың нәтижелерiн шартта
көрсетiлген мақсаттар үшiн пайдалану мүмкiн болмаса, шарттың нысанасын пайдалануға немесе өзгеше iске асыруға қатысты ақпаратты беруге мiндеттi.
638-бап. Тараптар алған ақпараттың құпиялылығы
Егер бiр тарап шарт бойынша өзiнiң мiндеттемесiн атқарудың арқасында басқа тараптан жаңа шешімдер мен техникалық білiмдер туралы ақпарат, оның iшiнде құқықтық қорғауды пайдаланбайтын ақпарат, сондай-ақ коммерциялық құпия ретiнде қаралуы мүмкiн мәлiметтер алса, оны екiншi тараптың келiсiмiнсiз үшiншi тұлғаларға хабарлауға құқығы жоқ.
Мұндай ақпаратты пайдаланудың тәртiбi мен талаптары тараптардың келiсiмiмен белгiленедi.
639-бап. Тапсырысшыға материалдар мен жабдықтарды қайтарып беру
Осы Кодекстiң 627-бабының 4-тармағының немесе 635-бабының 3- тармағының негiзiнде тапсырысшы мердiгерлiк шарттан бас тартқан жағдайда мердiгер тапсырысшы берген материалдарды, жабдықтарды, өңдеуге берiлген затты және өзге де мүлiктi қайтаруға не оларды тапсырысшы атаған тұлғаға беруге, ал егер бұл мүмкiн болмаса, материалдар, жабдықтар және тапсырысшыдан алынған өзге де мүлiк құнының орнын толтыруға мiндеттi.
Параграф 2 . Тұрмыстық мердiгерлiктiң ерекшелiктерi
640-бап. Тұрмыстық мердiгерлiк шарты
Тұрмыстық мердiгерлiк шарты бойынша кәсiпкерлiк қызметтi жүзеге асырушы мердiгер тапсырысшы азаматтың тапсырмасы бойынша тапсырысшының тұрмыстық немесе басқа да жеке қажеттерiн қанағаттандыруға арналған белгiлi бiр жұмысты орындауға мiндеттенедi, ал тапсырысшы жұмыстың нәтижесiн қабылдап алуға және оған ақы төлеуге мiндеттенедi.
Тұрмыстық мердiгерлiк шарты жария шарттарға жатады (осы Кодекстiң 387- бабы).
641-бап. Тапсырысшы құқықтарының кепiлдiктерi
1. Мердiгердiң тапсырысшыны тұрмыстық мердiгерлiк шартқа қосымша ақылы жұмыстарды немесе қызмет көрсетулердi енгiзуге мәжбүрлеуге құқығы жоқ. Бұл талап бұзылған жағдайда тапсырысшы мұндай жұмыстар мен қызмет көрсетулерге ақы төлеуден бас тартуға құқылы.
2. Тапсырыс беруші өзiне жұмыс нәтижелерiн өткiзгенге дейiн кез келген уақытта мердiгерге тапсырыс берушінің шарттан бас тартуы туралы хабарлама алғанға дейiн орындалған жұмыс үшiн мердiгерге белгiленген бағаның бiр бөлiгiн төлеп, тұрмыстық мердiгерлiк шарттан бас тартуға құқылы және тапсырыс беруші мердiгердiң сол кезге дейiн жасаған шығыстарын өтеуге мiндеттi. Тапсырыс берушіні бұл құқықтан айыратын шарт талаптары маңызсыз болады.
Ескерту. 641-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
642-бап. Шарттың нысаны
Егер заң актiлерiнде немесе шартта, оның iшiнде формулярлар ережелерiнде немесе тапсырысшы қосылатын өзге де стандартты нысандарда (осы Кодекстiң 389-бабы) өзгеше көзделмесе, тұрмыстық мердiгерлiк шарты мердiгердiң тапсырысшыға түбiртек немесе шарттың жасалғандығын растайтын өзге құжат берген кезден бастап тиiстi нысанда жасалған болып есептеледi.
Тапсырысшыда аталған құжаттардың болмауы оны шарттың жасалу фактiсiн немесе оның ережелерiн растауда куәгерлiк айғақтарға сiлтеме жасау құқығынан айырмайды.
643-бап. Тапсырысшыға жұмыстың нәтижелерi туралы ақпарат беру
Тапсырысшыға жұмыстардың нәтижелерiн өткiзген кезде мердiгер оған дайындалған немесе қайта жасалған затты не орындалған жұмыстың өзге нәтижесiн тиiмдi және қауiпсiз пайдалану үшiн сақталуы қажет талаптар туралы, сондай-ақ тиісті талаптардан сақтамауын тапсырыс берушiнiң өзiне және басқа адамдарға келтiрiлуi мүмкiн зардаптары туралы хабарлауға мiндеттi.
644-бап. Тапсырысшыға жұмыс туралы ақпарат беру
1. Мердiгер тұрмыстық мердiгерлiк шарт жасалғанға дейiн тапсырысшыға ұсынылатын жұмыстар, олардың түрлерi мен ерекшелiктерi туралы, жұмыстың бағасы мен оған ақы төлеудiң нысаны туралы қажеттi және сенiмдi ақпарат беруге, сондай-ақ тапсырысшыға оның өтiнiшi бойынша шартқа және тиiстi жұмысқа сәйкес басқа да мәлiметтердi хабарлап отыруға мiндеттi. Егер жұмыстың сипаты бойынша мұның маңызы болса, тапсырысшыға мердiгер оны орындайтын нақты тұлғаны көрсетуге тиiс.
2. Тапсырысшы мердiгерден алынған ақпараттың толық немесе сенiмдi болмауының салдарынан тапсырысшы көздеген қасиеттерi жоқ жұмыстарды орындауға шарт жасалған жағдайларда тапсырысшы тұрмыстық мердiгерлiк шартты бұзуды және зиянды өтеудi талап етуге құқылы.
645-бап. Жұмысты мердiгердiң материалынан орындау
1. Егер тұрмыстық мердiгерлiк шарты бойынша жұмыс мердiгердiң материалынан орындалатын болса, шартты жасау кезiнде тапсырысшы материал үшiн толық немесе тапсырысшы мердiгер орындаған жұмыстың нәтижесiн алған кезде түпкiлiктi есеп айырыса отырып, шартта көрсетiлген бөлiгi үшiн ақы төлейдi.
Шартқа сәйкес материалды мердiгер кредитке, оның iшiнде тапсырысшының материалға ақыны бөлiп-бөлiп төлеуi талабымен беруi мүмкiн.
2. Мердiгер берген материал бағасының шарт жасалғаннан кейiн өзгеруi қайта есептеуге әкеп соқпайды.
646-бап. Жұмысты тапсырысшының материалынан орындау
Егер тұрмыстық мердiгерлiк шарты бойынша жұмыс тапсырысшының материалынан орындалатын болса, түбiртекте немесе шарт жасасу кезiнде мердiгер тапсырысшыға беретiн өзге де құжатта материалдың дәл атауы, саны, сипаты мен тараптардың келiсiмi бойынша белгiленетiн бағасы көрсетiлуге тиiс. Түбiртектегi немесе сол сияқты өзге де құжаттағы материалды бағалауға тапсырысшы жазбаша дәлелдемелер ұсыну арқылы кейiн сотта дау айтуы мүмкiн .
647-бап. Жұмыстың бағасы және оған ақы төлеу
Тұрмыстық мердiгерлiк шартында жұмыстың бағасы тараптардың келiсiмiмен белгiленедi және ол мердiгер жарияланған прейскурантта көрсетiлгеннен жоғары болмауы керек. Тапсырысшы жұмысқа ақыны мердiгер оның нәтижесiн түпкiлiктi тапсырғаннан кейiн төлейдi. Тараптардың келiсiмi бойынша жұмысқа тапсырысшы шарт жасасу кезiнде толық немесе аванс беру арқылы ақы төлеуi мүмкiн.
648-бап. Орындалған жұмыстан кемшiлiктер табудың зардабы
1. Тапсырысшы жұмыстың нәтижелерiн қабылдаған кезде немесе мердiгерлiк нысанасын пайдалану кезiнде кемшiлiктер тапқан жағдайда осы Кодекстiң 630- бабында көзделген жалпы мерзiмдердiң iшiнде, ал кепiлдi мерзiмдер болған
кезде - сол мерзiмдердiң iшiнде осы Кодекстiң 635-бабында көзделген құқықтардың бiрiн жүзеге асыра алады.
2. Тұрмыстық мердiгерлiк шарт бойынша орындалған жұмыстың кемшіліктерін тегін жою туралы талап, егер заң актілерінде белгіленген тәртiпте өзге мерзiм (қызмет мерзiмi) көзделмесе, ол кемшiлiктер тапсырысшының өзiнiң және басқа да адамдардың өмiрiне немесе денсаулығына қауiптi болған жағдайда тапсырысшы немесе оның құқық мирасқоры жұмысты қабылдаған кезден бастап үш жыл iшiнде қойылуы мүмкiн. Мұндай талап бұл кемшiлiктердiң қай уақытта анықталғанына қарамастан, оның iшiнде кепiлдiк мерзiмi аяқталғаннан кейiн анықталған кезде де қойылуы мүмкiн.
Мердiгер аталған талапты орындамаған жағдайда тапсырысшы нақ сол мерзiм iшiнде не жұмыс үшiн төленген бағаның бiр бөлiгiн қайтаруды, не кемшiлiктердi өз күшiмен немесе үшiншi тұлғалардың көмегiмен жоюға кеткен шығындарды өтеудi талап етуге құқылы.
649-бап. Тапсырысшының орындалған жұмыс нәтижесiн алуға келмеуiнiң зардабы
1. Тапсырысшы орындалған жұмыс нәтижесiн алуға келмеген немесе тапсырысшы оларды қабылдаудан өзгедей жалтарған жағдайда мердiгер тапсырысшыға жазбаша түрде ескерте отырып, сол ескерткен күннен бастап екi ай өткен соң мердiгерлiк нысанасын қисынды бағаға сатуға, ал одан түскен соманы, мердiгерге тиесiлi барлық төлемдi шегерiп, осы Кодекстiң 291-бабына сәйкес тапсырысшының атына нотариустың депозитіне салуға құқылы.
2. Осы баптың 1-тармағында аталған жағдайларда мердiгер мердiгерлiк нысанасын сатудың орнына оны ұстап қалу (осы Кодекстiң 624-бабы) немесе тапсырысшыдан келтiрiлген залалды өндiрiп алу құқығын пайдалана алады.
650-бап. Шарттағы тараптардың бiрiнiң қайтыс болуының зардабы
Тұрмыстық мердiгерлiк шарт тараптардың бiрiнiң қайтыс болуы негiзiнде тоқтатылған жағдайда (осы Кодекстiң 376-бабы) шарттың тоқтатылу зардабы тиiстi тараптың құқықтық мирасқоры мен оның келiсiм-шарт жасасушы агентiнiң арасындағы келiсiм бойынша, ал олар келiсiмге келмеген кезде орындалған жұмыстың мөлшерi мен оның бағасы, жұмсалған және сақталған материалдың құны, сондай-ақ басқа да елеулi жағдайлар ескерiле отырып сот арқылы айқындалады.
Параграф 3. Құрылыс мердiгерлiгiнiң ерекшелiктерi
651-бап. Құрылыс мердiгерлiгiнiң шарты
1. Құрылыс мердiгерлiгiнiң шарты бойынша мердiгер тапсырысшының тапсырмасы бойынша шартта белгiленген мерзiмде белгiлi бiр объектiнi салуға не өзге де құрылыс жұмысын орындауға мiндеттенедi, ал тапсырысшы мердiгерге жұмысты орындауы үшiн қажеттi жағдайлар жасауға, оның нәтижесiн қабылдап алуға және ол үшiн келiсiлген бағаны төлеуге мiндеттенедi.
2. Құрылыс мердiгерлiгiнiң шарты кәсiпорынды, үйдi (оның iшiнде тұрғын үйдi), ғимаратты немесе өзге де объектiнi салуға немесе қайта жаңартуға, сондай-ақ монтаждау, iске қосу-жөнге келтiру және салынып жатқан объектiмен тығыз байланысты өзге де жұмыстарды орындауға жасалады. Егер шартта өзгеше көзделмесе, осы параграфтың ережелерi үйлер мен ғимараттарды күрделi жөндеу кезiнде де қолданылады.
Егер мұның өзi шартта көзделген болса, мердiгер объектiнi пайдалануға берудi тапсырысшы объектiнi қабылдағаннан кейiн шартта көрсетiлген мерзiм iшiнде қамтамасыз етуге мiндеттеме алады.
3. Құрылысты толық аяқтау туралы шарт жасасу кезiнде мердiгер өзiне құрылыс және оны қамтамасыз ету жөнiндегi барлық мiндеттеменi алады және шарт ережелерiне сәйкес тапсырысшыға пайдалануға дайын объектiнi тапсыруға тиiс.
4. Аяқталмаған құрылысты тапсырыс берушіге тапсырғанға дейiн және жұмыстарға төлем жасалғанға дейiн мердігер (үлестік тұрғын үй құрылысының объектілерін қоспағанда) оның меншік иесi болып табылады.
5. Құрылыс, мердiгерлiгi шарты бойынша жұмыс азаматтың ( тапсырысшының) тұрмыстық немесе басқа жеке қажеттерiн қанағаттандыру үшiн орындалатын жағдайда мұндай шартқа тиiсiнше тұрмыстық мердiгерлiк шарт бойынша тапсырысшының құқықтары туралы ережелер қолданылады.
Ескерту. 651-бапқа өзгеріс енгізілді - ҚР 07.04.2016 № 487-V Заңымен ( алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі).
652-бап. Құрылыс мердiгерлiгi шарты бойынша тәуекелдi бөлісу
1. Құрылыс объектiсi жұмысты өткiзудiң шартта белгiленген мерзiмi аяқталғанға дейiн дүлей күштiң салдарынан қираған немесе бүлiнген кезде тапсырысшы, егер шартта өзгеше көзделмесе, орындалған және (немесе) қалпына келтiру жұмыстарының құнын төлеуге мiндеттi.
2. Егер заң актiлерiнде немесе шартта өзгеше көзделмесе, жұмыстарды орындаудың кездейсоқ мүмкiн болмай қалу қаупiн олар өткiзiлгенге дейiн тапсырысшы көтередi.
3. Жұмыстың кездейсоқ қымбаттау қаупiн мердiгер көтередi. 4. Шартта құрылыста болуы ықтимал барлық тәуекелдi мердiгердiң
көтеретiндiгi көзделуi мүмкiн (құрылысты толық аяқтау). 5. Шартта мердiгердiң тәуекелдерiн сақтандыру көзделуi мүмкiн. Бұл
жағдайда сақтандыру жөнiндегi шығындар орындалған жұмыстар үшiн сыйақыны айқындау кезiнде ескерiлетiн құрылыс жөнiндегі шығыстарға енгiзiледi.
653-бап. Жүргiзiлетiн жұмыстардың қауiпсiздiгi үшiн жауаптылық
Жүргiзiлетiн жұмыстардың қауiпсiздiгi үшiн мердiгер жауапты болады.
654-бап. Жобалау-сметалық құжаттама
1. Мердiгер құрылысты және оған байланысты жұмыстарды жұмыстың көлемi мен мазмұнын және жұмысқа қойылатын басқа да талаптарды айқындайтын жобалау құжаттамасы мен жұмыстың бағасын айқындайтын сметаға сәйкес жүзеге асыруға мiндеттi.
Шартта өзге нұсқаулар болмаған кезде мердiгер жобалау-құжаттамасында және сметада (жобалау-сметалық құжаттамада) көрсетiлген барлық жұмыстарды орындауға мiндеттi деп түсiнiледi.
2. Егер шартта өзгеше көзделмесе, шетел тiлiнде жасалған жобалау-сметалық және басқа техникалық құжаттама мердігерге мемлекеттік немесе орыс тiлдерiне аударылып берiледi. Өлшем бiрлiктерi заң актiлерiнде белгiленген метрикалық жүйеге сәйкес болуға тиiс.
3. Құрылыс мердігерлігі шартында жобалау-сметалық құжаттаманың құрамы мен мазмұны айқындалуға тиiс, сондай-ақ тараптардың қайсысы және қандай мерзiмде тиiстi құжаттаманы беру керек екенi көзделуге тиiс.
4. Құрылыс жүргiзу барысында жобалау-сметалық құжаттамада есептелiнбеген жұмыстарды және осыған байланысты қосымша жұмыстар жүргiзу мен құрылыстың сметалық құнын өсiру қажеттiгiн анықтаған мердiгер тапсырысшыға ол туралы хабарлауға мiндеттi.
Мердiгер өз хабарламасына тапсырысшыдан он күн iшiнде жауап алмаған жағдайда, егер заң актiлерiнде немесе шартта бұл үшiн өзгеше мерзiм көзделмесе , бос тұрыстан келтiрiлген залалдарды тапсырысшының есебiне жатқыза отырып, тиiстi жұмысты тоқтата алады.
5. Осы баптың 4-тармағында белгiленген мiндеттердi орындамаған мердігер, егер тапсырысшының мүдделерi үшiн шұғыл iс-қимыл жасау қажеттiгiн, атап айтқанда, жұмыстың iркiлуi салынып жатқан объектiнiң қирауына немесе бүлiнуiне әкеп соқтыратынына байланысты шұғыл iс-әрекеттiң қажеттiгiн дәлелдей алмаса, тапсырысшыдан қосымша жұмысты орындағаны үшiн ақы және осыдан туған залалдардың орнын толтыруды талап ету құқығынан айырылады.
6. Тапсырысшы қосымша жұмысқа және оған ақы төлеуге келiсiм берген кезде, жұмыс мердiгердiң кәсiби қызмет аясына кiрмейтiн не мердiгерге байланыссыз себептермен орындалмайтын болған жағдайларда ғана мердiгердiң аталған жұмысты орындаудан бас тартуға құқығы бар.
655-бап. Жобалау-сметалық құжаттамаға өзгерiстер енгiзу
1. Тапсырысшы жобалау-сметалық құжаттамаға мердiгер үшiн қосымша шығындарға және (немесе) жұмыстың орындалу мерзiмiн ұзартуға байланысы жоқ өзгерiстер енгiзудi талап етуге құқылы.
2. Мердiгер үшiн қосымша шығындарды керек ететiн жобалау-сметалық құжаттамаға өзгерiстер енгiзу тараптардың келiсiлген қосымша сметасының негiзiнде тапсырысшының есебiнен жүзеге асырылады.
3. Егер мердiгерге байланыссыз себептермен жұмыс құны сметадан кемiнде он процентке асып кетсе, ол сметаны қайта қарауды талап етуге құқылы.
4. Жобалау-сметалық құжаттамадағы, мұндай құжаттама өзiнiң тапсырысы бойынша жасалған жағдайларды қоспағанда, мердiгер жобалау-сметалық құжаттамада жаңсақтықтарды анықтауға және жоюға байланысты шығарған қисынды шығындарды өтеудi талап етуге құқылы.
656-бап. Жұмыстарды материалдық қамтамасыз ету
1. Егер шартта тапсырысшының құрылысты тұтасымен немесе белгiлi бір бөлігінде материалдық қамтамасыз етуі көзделмесе, бөлшектер мен конструкцияларды қоса алғанда, құрылысты материалдармен, сондай-ақ жабдықтармен қамтамасыз ету жөнiндегi мiндеттердi мердiгер мойнына алады.
2. Мiндетiне құрылысты материалдық қамтамасыз ету кiретiн мердігер өзі берген материалдарды (бөлшектерді, конструкцияларды) немесе жабдықтарды орындалатын жұмыстардың сапасын нашарлатпай пайдалану мүмкiн болмай қалатындығы анықталатын тәуекелге барады.
3. Тапсырысшы берген материалдарды (бөлшектердi, конструкцияларды) немесе жабдықтарды орындалатын жұмыстардың сапасын нашарлатпай пайдалану мүмкiн болмай қалатындығы анықталған жағдайларда мердiгер
тапсырысшыдан оларды қисынды мерзiмде ауыстыруын талап етуге мiндеттi, ал бұл талап орындалмаған жағдайда мердiгер шарттан бас тартуға және тапсырысшыдан шарттың орындалған жұмыс бөлігіне бара-бар бағасын төлеуді, сондай-ақ осы сомамен жабылмаған залалдарды өтеудi талап етуге құқылы.
657-бап. Жұмысқа ақы төлеу
1. Орындалған жұмысқа ақыны тапсырысшы сметада көзделген мөлшерде заң актiлерiнде немесе шартта белгiленген мерзiмде және тәртiппен төлейдi. Заң актiлерiнде немесе шартта тиiстi нұсқаулар болмаған жағдайда мердігер орындаған жұмысқа ақы төлеу осы Кодекстің 623-бабына сәйкес жүргiзiледi.
2. Толық аяқталатын құрылыс кезiнде шартта көрсетiлген баға, егер тараптардың келiсiмiнде өзгеше көзделмесе, тапсырысшы объектiнi қабылдап алған соң толық көлемiнде төленедi.
658-бап. Құрылыс салу үшiн жер учаскесiн беру
Тапсырысшы құрылыс салу үшiн жер учаскесiн шартта көрсетiлген көлемде және сондай күйде уақытылы беруге мiндеттi. Шартта мұндай нұсқау болмаған жағдайда жер учаскесiнiң көлемi мен күйi жұмыстың уақытылы басталуын, оның қалыпты жүргiзiлуiн және мерзiмiнде аяқталуын қамтамасыз етуге тиiс.
659-бап. Тапсырысшының құрылыс мердiгерлiгі шартындағы қосымша мiндеттерi
Тапсырысшы құрылыс мердiгерлiгi шартында көзделген жағдайлар мен тәртiпте мердiгерге жұмыстарды жүргiзу үшiн қажеттi үйлер мен ғимараттар беруге, мердiгердiң мекен-жайына жүктердiң тасымалдануын қамтамасыз етуге, энергиямен жабдықтау желiлерiн, су және бу құбырларын уақытша жүргiзуге, басқа да қызметтер көрсетуге мiндеттi. Ақы шартта көзделген талаптар бойынша төленедi.
660-бап. Тапсырысшының шарт бойынша жұмыстың орындалуын бақылауы мен қадағалауы
1. Тапсырысшы құрылыс мердiгерлiгi шартында орындалып жатқан жұмыстың барысы мен сапасына, олардың орындалу мерзімінің (кестесінің) сақталуына, мердігер берген материалдардың сапасына, сондай-ақ тапсырысшының материалдарын мердiгердiң дұрыс пайдалануына бақылау мен қадағалауды жүзеге асыруға құқылы, бұл орайда ол мердiгердiң жедел-шаруашылық қызметiне араласпайды.
2. Орындалып жатқан жұмысты бақылау мен қадағалау кезінде шарт талаптарынан жұмыс сапасын нашарлататын ауытқуды немесе ондағы өзге де кемшiлiктердi анықтаған тапсырысшы ол туралы дереу мердігерге мәлімдеуге міндетті. Мұндай мәлімдеме жасамаған тапсырысшы кейін өзі анықтаған кемшіліктерге сілтеме жасау құқығынан айырылады.
3. Мердiгер құрылыс барысында тапсырысшыдан алған нұсқауларды, егер ондай нұсқаулар шарттың талаптарына қайшы келмесе және мердігердің жедел-шаруашылық қызметіне араласу болмаса, орындауға мiндеттi.
4. Жұмысты тиiстi дәрежеде орындамаған мердiгер оның орындалуына тапсырысшының бақылау мен қадағалау жасамағанына сiлтеме жасауға құқылы емес, бұған мұндай бақылау мен қадағалауды жүзеге асыру міндеті заң актілерінде немесе шартта тапсырысшыға жүктелген жағдайлар қосылмайды.
661-бап. Мердiгердiң қоршаған ортаны қорғау және құрылыс жұмыстарын қауiпсiз жүргiзу жөнiндегi мiндеттерi
Егер қоршаған ортаны қорғау және құрылыс жұмыстарын қауiпсiз жүргiзу туралы тараптар үшiн мiндеттi талаптарды бұзуға әкелiп соғатын болса, мердiгердiң жұмысты жүзеге асыру барысында тапсырысшы берген материалдарды (бөлшектердi, конструкцияларды) және жабдықтарды пайдалануға немесе оның нұсқауларын орындауға құқығы жоқ.
662-бап. Тараптардың құрылысты консервациялау кезiндегi мiндеттерi
Егер тараптарға қатысы жоқ себептермен құрылыс мердігерлігі шарты бойынша жұмыс тоқтатылып, құрылыс объектiсі консервацияланса, тапсырысшы мердігерге консервацияланған кезге дейін толық орындалған жұмыс көлеміне ақы төлеуге, сондай-ақ жұмыстың тоқтатылуы мен құрылысты консервациялау қажеттігінен туған шығындарды өтеуге міндетті.
663-бап Жұмыс нәтижелерін тапсыру және қабылдау
1. Құрылыс мердігерлігі шарты бойынша орындалған жұмысты не, егер бұл шартта көзделсе, жұмыстың бір кезеңін тапсыруға дайын екендігі туралы мердігердің хабарын алған тапсырысшы дереу оның нәтижелерін қабылдауға кірісуге міндетті.
2. Егер шартта өзгеше көзделмесе, тапсырысшы жұмыс нәтижелерін қабылдауды өз есебінен ұйымдастырады және жүзеге асырады. Заң актілерінде көзделген жағдайларда жұмыс нәтижесін қабылдауға мемлекеттік органдардың және жергілікті өзін-өзі басқару органдарының өкілдері қатысуға тиіс.
3. Жұмыстың жекелеген кезеңдерін алдын-ала қабылдаған тапсырысшы оның мердігердің кінәсінсіз жойылу немесе бүліну қаупін мойнына алады, бұған оның ішінде шартта жұмысты мердігердің тәуекелімен орындау көзделген жағдайлар да кіреді.
4. Мердігердің жұмыс нәтижелерін тапсыруы және тапсырысшының оны қабылдауы екі тарап, ал заң актілерінде көзделген жағдайларда - мемлекеттік органдар мен жергілікті өзін-өзі басқару органдарының өкілдері де қол қойған актімен ресімделеді. Тараптардың бірі актіге қол қоюдан бас тартқан жағдайда бұл туралы белгі қойылып, актіге екінші тарап қол қояды.
Жұмыс нәтижелерін бір жақты тапсыру немесе қабылдау актісін актіге қол қоюдан бас тарту себептерін сот негізсіз деп таныған жағдайда ғана сот жарамды деп тануы мүмкін.
5. Бұл заң актілерінде немесе шартта көзделген не құрылыс мердігерлігі шарты бойынша орындалатын жұмыстың сипатынан туындаған жағдайда, оның нәтижелерін қабылдауға алдын ала сынақ жұмыстары жүргізілуге тиіс. Мұндай жағдайларда жұмыс нәтижелерін қабылдау алдын ала жасалған сынақтың нәтижелері оң болған кезде ғана жүзеге асырылуы мүмкін.
6. Тапсырысшы шартта көрсетілген мақсат үшін жұмыс нәтижелерін пайдалану мүмкін болмайтын кемшіліктер анықталған жағдайда және оларды мердігер, тапсырысшы немесе үшінші тұлға жоя алмайтын болса, жұмыс нәтижелерін қабылдаудан бас тартуға құқылы.
Қабылдау кезінде өзге кемшіліктер анықталған жағдайда олар туралы осы баптың 4-тармағында көзделген актіде көрсетілуге тиіс.
7. Салынған объектілерді заңнамалық актілерде көзделген жағдайларда тапсырыс беруші қабылдауға тиіс.
Сапасыз салынған объектілер пайдалануға қабылданған жағдайда, тапсырыс беруші Қазақстан Республикасының заңдарында белгіленген жауаптылықта болады.
Ескерту. 663-бапқа өзгеріс енгізілді - ҚР 29.12.2014 № 269-V Заңымен ( 01.01.2015 бастап қолданысқа енгізіледі).
664-бап. Мердiгердiң жұмыстардың сапасы үшiн жауаптылығы
Мердiгер шартта, жобада және тараптар үшiн мiндеттi құрылыс нормалары мен ережелерінде көзделген талаптардан жол берілген ауытқулар үшін, сондай-ақ құрылыс объектiсiнiң жобалық-сметалық құжаттамада көрсетiлген
көрсеткiштерiне, оның iшiнде кәсiпорынның өндiрiстiк қуаты сияқты көрсеткiштерге жете алмағандығы үшiн тапсырысшының алдында жауапты болады.
Yйдi немесе ғимаратты қайта жаңғырту кезінде (жаңартқанда, қайта салғанда, қалпына келтiргенде және т.б.) мердiгерге үйдiң, ғимараттың немесе оның бөлігінің беріктігін, орнықтылығын, сенімділігін төмендеткені немесе жойғаны үшін жауаптылық жүктеледі.
665-бап. Құрылыс мердігерлігі шартындағы сапа кепiлдiктерi
1. Егер құрылыс мердігерлігі шартында өзгеше көзделмесе, мердігер құрылыс объектiсiнiң жобалық-сметалық құжаттамада көрсетілген көрсеткiштерге жеткiзiлуiне және шартқа сәйкес кепiлдi мерзiм iшiнде объектiнi пайдалану мүмкiндiгiне кепiлдiк бередi. Егер заң актiлерiнде немесе шартта өзгедей кепiлдiк мерзiмі көзделмесе, кепілдiк мерзiмi тапсырысшы объектiнi қабылдаған күннен бастап он жыл болады.
2. Кепілдiк мерзiмi шегiнде анықталған кемшiлiктер үшiн егер, объектiнiң немесе оның бөлiктерiнiң қалыпты тозуының, оны дұрыс пайдаланбаудың немесе тапсырысшы өзi немесе ол тартқан үшiншi тұлғалар жасаған пайдалану жөніндегі нұсқаулықтардың дұрыс болмауының, объектіні тапсырысшының өзі немесе ол тартқан үшінші тұлғалар жөндеуді тиісті дәрежеде жүргізбеуі салдарынан болғанын дәлелдей алмаса, мердігер жауапты болады.
3. Мердiгер жауап беретiн кемшіліктердің (ақаулардың немесе шала істелген жұмыстың) салдарынан объект пайдаланыла алмаған барлық уақытқа кепiлдiк мерзiмiнiң өтуi тоқтатыла тұрады.
4. Кепілдік мерзімнің ішінде осы Кодекстің 630-бабының 4-тармағында көрсетiлген кемшiлiктер анықталған кезде тапсырысшы олар анықталғаннан кейін қисынды мерзімде олар туралы мердігерге мәлімдеуге тиіс.
5. Құрылыс мердігерлігі шартында кепілдік мерзім анықталғанға дейiн сметада көрсетiлiп, шартта көзделген жұмыс бағасының бiр бөлiгiн тапсырысшының ұстап қалу құқығы көзделуі мүмкін.
666-бап. Кемшіліктерді тапсырысшының есебінен жою
1. Құрылыс мердiгерлiгi шартында тапсырысшының талап етуi бойынша және тапсырысшының есебiнен мердiгер жауапты болмайтын кемшiлiктердi ( ақаулар мен шала iстелген жұмыстарды) мердiгердiң жою мiндетi көзделуi мүмкiн.
2. Шарттың нысанасымен тiкелей байланысты болмаған немесе өзiне қатысы жоқ себептермен мердiгердiң орындауы мүмкiн болмаған жағдайда мердiгер осы баптың 1-тармағында көрсетілген жұмыстарды орындаудан бас тартуға құқылы.
Параграф 4. Жобалау және iздестiру жұмыстарына мердiгерлiктiң ерекшелiктерi
667-бап. Жобалау және iздестiру жұмыстарына мердiгерлiк шарт
1. Жобалау және iздестiру жұмыстарына мердiгерлiк шарт бойынша мердiгер (жобалаушы, iздестiрушi) тапсырысшының тапсырмасы бойынша жобалау-сметалық құжаттаманы әзірлеуге және (немесе) iздестiру жұмыстарын жүргiзуге мiндеттенедi, ал тапсырысшы оларды қабылдап алуға және ақы төлеуге міндеттенедi.
2. Егер заң актiлерiнде немесе жобалау және (немесе) іздестіру жұмыстарына арналған шартта өзгеше көзделмесе, жобалау және iздестiру жұмыстарына арналған шартты орындаудың кездейсоқ мүмкiн болмауының тәуекелi тапсырысшыға жүктеледi.
668-бап. Жобалау және iздестiру жұмыстарына арналған бастапқы деректер
1. Жобалау және iздестiру жұмыстарына арналған мердiгерлiк шарт бойынша тапсырысшы мердігерге жобалауға тапсырма, сондай-ақ жобалау-сметалық құжаттаманы жасау үшiн қажеттi бастапқы деректердi беруге мiндеттi. Тапсырысшының тапсырмасы бойынша жобалауға тапсырманы мердiгер дайындауы мүмкiн, бұл жағдайда тапсырма тапсырысшы оны бекіткен кезден бастап тараптар үшін міндетті болады.
2. Мердігер тапсырмадағы және іздестіру жұмыстарын жобалау мен орындауға арналған басқа да бастапқы деректердегi талаптарды сақтауға мiндеттi және одан тек тапсырысшының келiсiмiмен ғана ауытқуға құқылы.
669-бап. Тапсырысшының мiндеттерi
Жобалау және iздестiру жұмыстарына арналған мердiгерлiк шарт бойынша, егер шартта өзгеше көзделмесе, тапсырысшы:
1) мердiгерге барлық жұмыстар аяқталғаннан кейін белгiленген бағаны төлеуге немесе оны жұмыстың жекелеген кезеңдерi аяқталғаннан кейiн бөлiп төлеуге;
2) мердiгерден алынған жобалау-сметалық құжаттаманы тек шартта көзделген мақсаттарға пайдалануға, жобалау-сметалық құжаттаманы үшiншi тұлғаларға бермеуге және ондағы деректердi мердiгердiң келiсiмiнсiз жария етпеуге;
3) мердiгерге шартта көзделген көлем мен жағдайда жобалау және iздестiру жұмыстарын орындауына қызмет көрсетуге;
4) мердігермен бiрге дайын жобалау-сметалық құжаттаманы құзіреттi мемлекеттiк органдармен және жергiлiктi өзiн-өзi басқару органдарымен келiсуге қатысуға;
5) мердiгерге қатысы жоқ мән-жайлардың салдарынан жобалау және iздестiру жұмыстарына арналған бастапқы деректердiң өзгеруiнен пайда болған қосымша шығындарды өтеуге;
6) жасалған жобалау құжаттамаларының немесе орындалған iздестiру жұмыстарының кемшiлiктерiне байланысты үшiншi тұлға тапсырысшыға қойған талап бойынша мердiгердi iске қатысуға тартуға мiндеттi.
670-бап. Мердiгердiң мiндеттерi
Жобалау және іздестіру жұмыстарына арналған мердігерлік шарт бойынша мердiгер:
1) жұмыстарды шарт жасасу кезiнде жобалауға берiлген бастапқы деректерге сәйкес орындауға;
2) дайын жобалау-сметалық құжаттаманы тапсырысшымен, ал қажет жағдайда тапсырысшымен бірге құзыреттi мемлекеттiк органдармен және жергiлiктi өзiн-өзi басқару органдарымен келiсуге;
3) егер шартта өзгеше көзделмесе, тапсырысшыға дайын жобалық-сметалық құжаттаманы және iздестiру жұмыстарының нәтижесiн бір мезгiлде беруге;
4) тапсырысшының келісімінсіз жобалау-сметалық құжаттаманы үшінші тұлғаларға бермеуге міндетті.
671-бап. Мердігердің кепілдіктері
Мердігер жобалау және іздестіру жұмыстарына арналған мердігерлік шарт бойынша тапсырысшыға мердігер әзiрлеген жобалау-сметалық құжаттаманың негізінде үшінші тұлғалардың жұмыстардың орындалуына бөгет жасау немесе шектеу қою құқығының жоқтығына кепiлдiк бередi.
672-бап. Жобалау-сметалық құжаттаманың және iздестiру жұмыстарының кемшiлiктерi үшiн мердiгердiң жауаптылығы
1. Жобалау және iздестiру жұмыстарына арналған мердiгерлiк шарт бойынша мердiгер құрылысты салу барысынан кейiн, сондай-ақ орындалған жобалау-сметалық құжаттама және iздестiру жұмыстары негiзiнде жасалған объектiнi пайдалану процесiнде анықталған кемшiлiктердi қоса алғанда, жобалау-сметалық құжаттаманың және iздестiру жұмыстарының кемшiлiктерi үшiн жауапты болады.
2. Жобалау-сметалық құжаттамада немесе iздестiру жұмыстарында кемшiлiктер анықталған жағдайда мердiгер тапсырысшының талабы бойынша жобалау-сметалық құжаттаманы тегiн қайта жасауға және тиiсiнше қосымша iздестiру жұмыстарын жүргiзуге, сондай-ақ, егер заң актiлерiнде немесе шартта өзгеше белгiленбесе, тапсырысшыға келтiрiлген залалды өтеуге мiндеттi.
3. Жобалау құжаттамасының кемшiлiктерiнен туындайтын талаптарды оны дайындау жөнiнде тапсырысшы болмаса да, жобалау құжаттамасын пайдаланатын тұлғаның қоюы мүмкiн.
Параграф 5. Ғылыми-зерттеу, тәжiрибе-конструкторлық және технологиялық жұмыстарға мердiгерлiктiң ерекшелiктерi
673-бап. Ғылыми-зерттеу, тәжiрибе-конструкторлық және технологиялық жұмыстарға шарттар
1. Ғылыми-зерттеу жұмыстарына жасалған шарт бойынша мердiгер ( атқарушы) тапсырысшының тапсырмасында көзделген ғылыми зерттеулердi жүргiзуге, ал тәжiрибе-конструкторлық және технологиялық жұмыстарға шарт бойынша - жаңа бұйымның үлгiсiн, оған конструкторлық құжаттаманы, жаңа технологияны жасауға немесе үлгi дайындауға міндеттенеді; тапсырысшы мердігерге (атқарушыға) техникалық тапсырма беруге, жұмыс нәтижелерін қабылдауға және оларға ақы төлеуге міндеттенеді.
2. Мердiгермен (атқарушымен) жасалған шарт зерттеу жүргiзудiң, үлгiлердi әзiрлеу мен жасаудың бүкiл циклын да, сондай-ақ олардың жекелеген элементтерiн де қамтуы мүмкiн.
674-бап. Жұмыстарды орындау
1. Мердiгер (атқарушы) ғылыми зерттеулердi жеке өзi жүргiзуге мiндеттi. Егер шартта өзгеше көзделмесе, ол ғылыми-зерттеу жұмыстарына жасалған шартты орындауға тапсырысшының келiсiмiмен ғана үшiншi тұлғаларды тартуға құқылы.
2. Тәжiрибе-конструкторлық және технологиялық жұмыстарды орындау кезiнде, егер шартта өзгеше көзделмесе, мердiгер оларды орындауға үшiншi тұлғаларды қосалқы мердiгер ретінде тартуға құқылы.
675-бап. Жұмыстарды тапсыру, қабылдау және оған ақы төлеу
Мердiгер (атқарушы) толық аяқталған ғылыми-зерттеу, тәжiрибе-конструкторлық және технологиялық жұмысты тапсыруға, ал тапсырысшы оны қабылдауға және оған ақы төлеуге міндетті. Шартта жұмыстың жекелеген кезеңдерін қабылдау және оларға ақы төлеу не ақы төлеудiң өзге де әдiсi көзделуi мүмкiн.
676-бап. Шарт туралы мәлiметтердiң құпиялылығы
Егер ғылыми-зерттеу жұмыстарына не тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шартта өзгеше көзделмесе:
1) мердiгер (атқарушы) де, тапсырысшы да шарттың нысанасына, оның орындалу барысына және алынған нәтижелерге қатысты мәлiметтердiң құпиялылығын қамтамасыз етуге мiндеттi. Құпия деп танылатын мәлiметтердiң көлемi шартта белгiленедi;
2) мердiгер аталған шарт бойынша алынған жұмыс нәтижелерiн тек тапсырысшының келiсiмiмен ғана патенттеудi жүзеге асыруға құқылы.
677-бап. Тараптардың жұмыс нәтижелерiне құқықтары
1. Тапсырысшының ғылыми-зерттеу жұмыстарына не тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шарт бойынша өзiне берiлген жұмыс нәтижелерiн шартта көзделген шекте және жағдайда пайдалануға құқығы бар.
2. Егер шартта өзгеше көзделмесе, мердiгер (атқарушы) өзi алған жұмыс нәтижелерiн өзi үшiн пайдалануға құқылы.
3. Шартта мердiгердiң (атқарушының) жұмыс нәтижелерiн үшiншi тұлғаларға сату құқығы көзделуi мүмкiн.
678-бап. Тапсырысшының мiндеттерi
Ғылыми-зерттеу не тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шарт бойынша тапсырысшы:
1) мердiгерге (атқарушыға) техникалық тапсырма беруге және онымен жұмыс бағдарламасын (техникалық-экономикалық өлшемдердi) немесе тақырыптамасын келiсуге;
2) мердiгерге (атқарушыға) жұмысты орындауға қажеттi ақпарат беруге; 3) орындалған жұмыс нәтижелерiн қабылдауға және оларға ақы төлеуге (осы
Кодекстiң 623-бабы) мiндеттi.
679-бап. Мердiгердiң (атқарушының) мiндеттерi
1. Ғылыми-зерттеу жұмыстарына не тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шарт бойынша мердiгер (атқарушы):
1) жұмысты тапсырысшымен келiсiлген бағдарламаға ( техникалық-экономикалық өлшемдерге) немесе тақырыптамаға сай орындауға және тапсырысшыға шартта көзделген мерзiмде жұмыс нәтижелерiн беруге;
2) интеллектуалдық меншiктi құқықтық қорғауға байланысты талаптарды сақтауға;
3) шартта немесе тапсырысшының техникалық тапсырмасында көзделген техникалық-экономикалық өлшемдерден ауытқуға соқтыруы мүмкiн техникалық құжаттамадағы өз кiнәсiнен жiберiлген кемшiлiктердi өз күшiмен және өз есебiнен жоюға;
4) тапсырысшыға күтiлетін нәтижелерге жету мүмкiн болмайтыны анықталғаны немесе жұмысты одан әрi жүргiзу орынсыз екенi туралы дереу хабарлауға;
5) тапсырысшыға осындай шарт негiзiнде берiлген нәтижелерге үшiншi тұлғаларда айрықша құқықтарының болмайтынына кепiлдiк беруге мiндеттi.
2. Егер ғылыми-зерттеу жұмыстарына не тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шарттарда өзгеше көзделмесе, мердiгер ( атқарушы):
1) жұмысты орындау кезiнде алынған ғылыми-техникалық нәтижелердi тапсырысшының келiсiмiнсiз жариялаудан тартынуға;
2) жұмысты орындау кезiнде алынған құқықтық қорғауға қабiлеттi нәтижелердi қорғау үшiн шаралар қолдануға және бұл туралы тапсырысшыға хабарлауға;
3) орындалған жұмыстарда қолданылған, құқықтық қорғауды иеленетiн ғылыми-техникалық нәтижелердi пайдалануға тапсырысшыға айрықша лицензия беруге мiндеттi.
680-бап. Ғылыми-зерттеу жұмыстарына жасалған шартта нәтижеге жету мүмкiндiгi болмауының салдары
Егер ғылыми-зерттеу жұмыстарының барысында мердігерге (атқарушыға) байланыссыз себептер салдарынан нәтижеге жетудің мүмкін еместiгi анықталса, тапсырысшы шартта көзделген нәтижелерге жетудiң мүмкiн еместiгi
анықталғанға дейiн жүргiзiлген жұмыс құнын төлеуге мiндеттi, бiрақ ол шартта көзделген жұмыстардың тиiстi бөлiгiнiң бағасынан аспауға тиiс.
681-бап. Тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шартта жұмыс нәтижесiне жету мүмкiндiгi болмауының салдары
Егер тәжiрибе-конструкторлық және технологиялық жұмыстарды орындау барысында мердiгердiң кiнәсiнсiз жұмысты одан әрi жалғастыру мүмкiн болмайтыны немесе орынсыз екенi анықталса, тапсырысшы атқарушы шеккен шығындарды төлеуге мiндеттi.
682-бап. Мердiгердiң (атқарушының) шартты бұзғаны үшін жауапкершілігі
1. Мердігер (атқарушы) тапсырыс берушінің алдында ғылыми-зерттеу жұмыстарына не тәжiрибе-конструкторлық және технологиялық жұмыстарға жасалған шартты орындамағаны және тиiстi дәрежеде орындамағаны үшiн, егер шарттың бұзылуы мердiгердiң (атқарушының) кiнәсiнен болмағанын дәлелдей алмаса, жауапты болады.
2. Шартты бұзған мердiгер (атқарушы), егер шартта өзгеше көзделмесе, тапсырыс берушi шеккен залалды нақты зиян түрiндегi жұмыстың құны шегiнде өтеуге мiндеттi.
33-тарау. Өтелмелі қызмет көрсету
683-бап. Өтелмелi қызмет көрсету шарты
1. Өтелмелi қызмет көрсету шарты бойынша орындаушы тапсырысшының тапсырмасы бойынша қызмет көрсетуге (белгiлi бiр iс-әрекет жасауға немесе белгiлi бiр қызметтi жүзеге асыруға) мiндеттенедi, ал тапсырысшы бұл қызмет көрсетуге ақы төлеуге мiндеттенедi.
2. Осы тараудың ережелерi байланыс қызметiн, медициналық, мал дәрiгерлiк, аудиторлық, консультациялық, ақпараттық қызмет көрсетуге, оқыту бойынша көрсетiлген қызметтерге, туристiк қызмет көрсетуге және осы Кодекстiң 32, 34, 35, 39, 41, 43, 44-тарауларында көзделген шарттар бойынша көрсетiлетiн қызметтердi қоспағанда, өзге де қызмет көрсетулерге қолданылады.
684-бап. Өтелмелi қызмет көрсету шартын атқару
Егер өтелмелi қызмет көрсету шартында өзгеше көзделмесе, атқарушы қызметтi өзi көрсетуге мiндеттi.
685-бап. Көрсетiлген қызметтерге ақы төлеу
1. Тапсырысшы өзiне көрсетiлген қызметтерге өтелмелi қызмет көрсету шартында көрсетiлген мерзiм мен тәртiпте ақы төлеуге мiндеттi.
2. Тапсырысшының кiнәсiнен орындау мүмкiн болмаған жағдайда, егер заң актiлерiнде немесе өтелмелi қызмет көрсету шартында өзгеше көзделмесе, көрсетiлген қызметке ақы толық көлемiнде төленуге жатады.
3. Орындаудың мүмкiн болмауы тараптардың ешқайсысы жауап бермейтін мән-жайлар бойынша туындаған жағдайда, егер заң актiлерінде немесе шартта өзгеше көзделмесе, тапсырысшы атқарушыға оның iс жүзiнде шыққан шығындарын өтейдi.
686-бап. Өтелмелi қызмет көрсету шартын орындаудан бiржақты бас тарту
1. Тапсырысшы атқарушының iс жүзiнде шеккен шығыстарын өтеген жағдайда өтелмелi қызмет көрсету шартын орындаудан бас тартуға құқығы.
2. Тапсырысшының кiнәсiнен болған жағдайды қоспағанда, атқарушы өтелмелi қызмет көрсету шарты бойынша мiндеттемелердi орындаудан тапсырысшыға шартты бұзудан келтiрiлген залалды толық өтегенде ғана бас тартуға құқылы.
687-бап. Өтелмелi қызмет көрсету шартын құқықтық реттеу
Мердiгерлiк туралы жалпы ережелер (осы Кодекстiң 616-639-баптары) және тұрмыстық мердiгерлiк туралы ережелер (осы Кодекстiң 640-650-баптары), егер осы Кодекстiң 683-686-баптарына, сондай-ақ өтелмелi қызмет көрсету шарты нысанасының ерекшелiктерiне қайшы келмесе, өтелмелi қызмет көрсету шартына қатысты қолданылады.
34-тарау. Тасымалдау
688-бап. Жалпы ережелер
1. Жүктердi, жолаушыларды және теңдеме жүктi тасу тасымалдау шартының негiзiнде жүргiзiледi.
2. Тасымалдаудың жалпы талаптары көлiк туралы заң актiлерiмен, өзге де заң актiлерiмен және оларға сәйкес шығарылған ережелермен белгiленедi.
Жүктердi, жолаушыларды және теңдеме жүктi көлiктiң жекелеген түрлерiмен тасымалдау талаптары, егер осы Кодекспен, көлiк туралы заң актiлерiмен, өзге де заң актiлерiмен және оларға сәйкес шығарылған ережелермен өзгеше белгiленбесе, тараптардың келiсiмiмен белгiленедi.
689-бап. Жүктi тасымалдау шарты
1. Жүктi тасымалдау шарты бойынша бiр тарап (тасымалдаушы) өзiне басқа тараптың (жүк жөнелтушiнiң) сенiп тапсырған жүгiн белгiленген мекенге жеткiзуге және жүктi алуға уәкiлеттi адамға (алушыға) оны беруге міндеттенеді, ал жүк жөнелтуші жүкті тасымалдағаны үшiн шартқа немесе тарифке сәйкес ақы төлеуге мiндеттенедi.
2. Жүк тасымалдау шарты көлiктiк құжатын, коносаменттi, тауар-көлiк құжатын немесе жүк тасымалдаудың көлiк туралы заң актiлерiнде көзделген өзге құжатын толтыру арқылы ресiмделедi.
690-бап. Жолаушы тасымалдау шарты
1. Жолаушы тасымалдау шарты бойынша тасымалдаушы жолаушыны баратын мекенiне, ал жолаушы теңдеме жүктi тапсырған жағдайда теңдеме жүктi де апаратын мекенге жеткiзудi және оны теңдеме жүктi алуға құқық берiлген адамға беруге мiндеттенедi; жолаушы жолына, ал теңдеме жүгiн тапсырған кезде - теңдеме жүгiн алып баруға ақы төлеуге мiндеттенедi.
2. Жолаушы мен теңдеме жүктi тасымалдау шарты тиiсiнше жол жүру билетiмен және теңдеме жүк түбiртегiмен ресiмделедi. Жол жүру билетi мен теңдеме жүк түбiртегiнiң нысаны көлiк туралы заң актiлерiнде көзделген тәртiппен белгiленедi.
691-бап. Кеме жалдау (чартер) шарты
Кеме жалдау (чартер) шарты бойынша бiр тарап (кемемен жалданушы) басқа тарапқа (кеме жалдаушы) жолаушыларды, теңдеме жүктi және жүктердi тасымалдау үшiн бiр немесе бiрнеше көлiк құралын толық немесе оның сыйымдылығының бiр бөлiгiн бiр немесе бiрнеше рейске ақы төлеттiрiп беруге мiндеттенедi.
Кеме жалдау шартын жасасу тәртiбi, сондай-ақ оның нысаны мен түрлерi көлiк туралы заң актiлерiмен белгiленедi.
692-бап. Тасымалдауды ұйымдастыру туралы шарттар
Жүйелi түрде тасымалдауларды жүзеге асыру қажет болған кезде тасымалдаушы мен жүк жөнелтушi тасымалдауларды ұйымдастыру туралы ұзартылған шарттар жасаса алады.
Жүктердi тасымалдауларды ұйымдастыру туралы шарт бойынша тасымалдаушы белгiленген мерзiмде жүктi қабылдауға, ал жүк жөнелтушi - келiсiлген көлемде тасымалдауға жүк берiп тұруға мiндеттенедi.
Тасымалдауды ұйымдастыру туралы шартта тасымалдау көлемдерi, мерзiмдерi, сапасы және көлiк құралдарын беру мен тасымалдауға жүктердi берудiң басқа да жағдайлары, сондай-ақ тасымалдауды ұйымдастырудың заң актiлерiнде көзделмеген өзге де жағдайлары белгiленедi.
693-бап. Көлiк ұйымдары арасындағы шарттар
Әртүрлi көлiк ұйымдары арасында жүктердi тасымалдауды қамтамасыз ету жөнiндегi жұмысты ұйымдастыру туралы шарттар (тораптық келiсiмдер, жүктердi орталықтандырылған түрде әкелу (әкету) шарты және басқалар) жасалуы мүмкiн.
Мұндай шарттарды жасасу тәртiбi көлiк туралы заң актiлерiмен белгiленедi.
694-бап. Аралас тасымалдар
Екі немесе одан да көп көлiк түрлерiмен бірыңғай тауар-көлiк жүкқұжаты ( бірыңғай коносамент) бойынша тасымалдау (аралас тасымалдар) кезіндегі өзара қарым-қатынастар, сондай-ақ осындай тасымалдарды ұйымдастыру тәртiбi Қазақстан Республикасының көлік туралы заңнамалық актiлеріне сәйкес аралас тасымалдар қатысушыларының арасындағы жасалатын шарттармен айқындалады.
Ескерту. 694-бап жаңа редакцияда - ҚР 27.10.2015 № 363-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
695-бап. Жалпы пайдаланыстағы көлiкпен тасымалдау
1. Коммерциялық ұйым жүзеге асыратын тасымалдау, егер заң актiлерiнен, өзге нормативтiк құқықтық актiлерден немесе осы ұйымға берiлген лицензиядан (патенттен) бұл ұйым жолаушыларды, жүктердi және (немесе) теңдеме жүктi кез келген азаматтың немесе заңды тұлғаның өтiнiшi бойынша тасымалдауды жүзеге асыруға мiндеттi екенi туындайтын болса, жалпы пайдаланыстағы көлiкпен тасымалдау болып танылады.
2. Жалпы пайдаланыстағы көлiкпен тасымалдау шарты жария шарт болып табылады (осы Кодекстiң 387-бабы).
696-бап. Көлiк құралдарын беру, жүктi тиеу (түсiру)
1. Тасымалдаушы жүк жөнелтушiге жүк тиеуге қабылданған өтiнiмде ( тапсырыста), тасымалдау шартында белгiленген мерзiмде тиiстi жүкті тасымалдауға жарайтын күйінде ақаусыз көлiк құралдарын беруге мiндеттi.
Жүк жөнелтушi тиiстi жүктi тасымалдауға берiлген жарамсыз көлiк құралдарынан бас тартуға құқылы.
2. Жүктi тиеудi (түсiрудi) көлiк ұйымдары мен жүк жөнелтушi (жүк алушы) көлiк туралы заң актiлерiнде және оларға сәйкес шығарылған ережелерде белгiленген талаптарды сақтай отырып, шартта көзделген тәртiппен және мерзiмде жүзеге асырады.
3. Жүк жөнелтушiнiң (алушының) күшiмен және құралдарымен жүзеге асырылатын жүк тиеу (түсiру), егер мұндай мерзiмдер көлiк туралы заң актiлерiнде және оларға сәйкес шығарылған ережелерде белгiленбесе, шартта белгiленген мерзiмде жүзеге асырылуға тиiс.
697-бап. Кiре ақысы
1. Егер заң актiлерiнде өзгеше көзделмесе, жүктердi, жолаушыларды және теңдеме жүкті тасымалдау үшін тараптардың келiсiмiнде белгiленген ақы төленедi.
2. Жалпы пайдаланыстағы көлiкпен жүктердi, жолаушыларды, теңдеме жүктi тасымалдауға ақы төлеу көлiк туралы заң актiлерiнде белгiленген тәртiппен бекiтiлетiн тарифтер негiзiнде айқындалады.
3. Жүк иелерiнiң талабы бойынша орындалатын және тарифтерде көзделмеген жұмыстар мен қызмет көрсетулерге ақы тараптардың келiсiмi бойынша төленедi.
4. Тасымалдаушының өзiне тасымалдау үшiн берiлген жүктер мен теңдеме жүктi оған тиесiлi кiре ақысын және тасымалдау жөнiндегi басқа да төлемдердi ( осы Кодекстiң 292-бабы) қамтамасыз ету үшiн, егер заң актiлерiнде, тасымалдау шартында өзгеше белгiленбесе немесе міндеттеме мәнiнен туындамаса, ұстап қалуға құқығы бар.
698-бап. Жүктi, жолаушыны және (немесе) теңдеме жүктi жеткiзу мерзiмi
Тасымалдаушы жүктi, жолаушыны және (немесе) теңдеме жүктi тиiстi пунктке көлiк туралы заң актiлерiнде айқындалған және оларға сәйкес
тасымалдау ережелерiнде белгiленген мерзiмде жеткiзуге мiндеттi. Егер жүктi, жолаушыны немесе теңдеме жүктi жеткiзу мерзiмi белгiленбесе және тараптар бұл мерзiмдi шартта көздемеген болса, жеткiзу қисынды мерзiмде жүргiзiлуi тиiс .
699-бап. Жүкке билiк ету құқығы
1. Жүк жөнелтушi немесе жүкке билiк ету құжатының иесi тасымалдаушыға тасымалдауды тоқтатуды немесе жүктi қайтаруды талап ете алады не басқа да өкiм бере алады. Бұл жағдайда тасымалдаушы жасалған тасымалға ақы төлеуді, сондай-ақ жасалған өкімге байланысты келтiрген шығындарды өтеуiн талап етуге құқылы.
2. Жүк баратын жерiне жеткеннен кейiн жүк алушыға жүктi берген кезде жүк жөнелтушi алдыңғы тармақта көрсетiлген құқықтардан айырылады.
3. Жүк алушы ерекше сақталу жағдайларын қажет ететiн (тез бүлiнетiн) жүктi алу жөнiндегi мiндеттемелердi орындаудан жалтарған кезде, мұндай жүктi сақтау мүмкiн болмаған және оның бүлiнуiне әкеп соғуы ықтимал жағдайда жүк жөнелтушiнiң оған қалай иелiк ету керектiгi жөнiнде нұсқауы болмаса, тасымалдаушының жүктi сатуға құқығы бар.
Жүктi сатудан түскен сома тасымалдаушыға тиесiлi соманы шегергеннен кейiн нотариустың атына депозит шартымен салынады.
Ескерту. 699-бапқа өзгерту енгізілді - Қазақстан Республикасының 2001.12.06 . N 260 Заңымен.
700-бап. Жолаушылардың құқықтары
Көлiк туралы заң актiлерiнде көзделген тәртiп бойынша жолаушының: 1) өзiмен бiрге балаларды тегiн немесе өзге де жеңiлдiктi жағдайларда алып
жүруге; 2) белгiленген нормалардың шегiнде өзiмен бiрге қол жүгiн ақысыз алып
жүруге; 3) теңдеме жүкті тариф бойынша ақы төлеп, тасымалдауға тапсыруға құқығы
бар.
701-бап. Тасымалдау жөнiндегi мiндеттемелердiң бұзылғаны үшiн жауапкершiлiк
1. Тасымалдау жөнiндегi мiндеттемелер орындалмаған немесе тиiстi дәрежеде орындалмаған жағдайда, тараптар осы Кодексте, көлiк туралы заң актiлерiнде,
өзге заң актiлерiнде, сондай-ақ тараптардың келiсiмiнде белгiленгендей жауапты болады.
2. Көлiк ұйымдарының жолаушылармен және жүк жөнелтушiлермен (жүк алушылармен) заң актiлерiнде белгiленген жауапкершiлiктi шектеу немесе жою туралы келiсiмдерi, жүктi тасымалдау кезiнде мұндай келiсiмдер жасау мүмкiндiгi көлiк туралы заң актiлерiнде көзделгеннен басқа жағдайларда, маңызсыз болады.
Ескерту. 701-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
702-бап. Тасымалдаушының көлiктi бермегенi үшiн және жөнелтушiнiң берiлген көлiк құралдарын пайдаланбағаны үшiн жауапкершiлiгi
1. Тасымалдаушы қабылданған өтiнiмге (тапсырысқа) немесе өзге шартқа сәйкес жүктi тасымалдау үшiн көлiктi бермегенi үшiн, ал жөнелтушi жүктi ұсынбағандығы не өзге себептер бойынша берiлген көлiк құралдарын пайдаланбағаны үшiн көлiк туралы заң актiлерiнде, сондай-ақ тараптардың келiсiмiнде белгiленгендей жауапты болады.
2. Тасымалдаушы және жүктi жөнелтушi көлiк құралдары берiлмеген немесе уақтылы берiлмеген не көлiк құралдары пайдаланылмаған жағдайда, егер ол:
1) дүлей күштің; 2) көлiк туралы заң актiлерiнде көзделген тәртiппен белгiленген белгiлi бiр
бағыттарда жүктердi тасымалдауды тоқтатудың немесе шектеудiң; 3) заң актілерiнде көзделген өзге де жағдайлардың салдарынан болса,
жауаптылықтан босатылады.
703-бап. Тасымалдаушының тiкелей аралас қатынас кезiндегi жауапкершiлiгi
Тасымалдаушылар тiкелей аралас қатынаста жүктiң жоғалғаны, бүлiнгенi, зақымданғаны, кем шыққаны үшiн жүктi жөнелтушiнiң (жүк алушының) алдында ортақтасып жауап бередi.
Кешiктiргенi үшiн, егер кешiктiру тасымалдаушылардың кiнәсiнен болмағанын дәлелдемесе, соңғы тасымалдаушы жауапты болады.
704-бап. Тасымалдаушының жолаушыны жөнелтудi кiдiрткенi үшiн жауапкершiлiгi
1. Жолаушыны тасымалдайтын көлiк құралын жөнелтудi кiдiрткенi немесе мұндай көлiк құралының баратын жерiне кешiгiп барғаны үшiн (қалалық және қала маңы қатынастарындағы тасымалдауды қоспағанда) тасымалдаушы, егер кiдiрту немесе кешiгу дүлей күштiң салдарынан орын алғанын дәлелдемесе, жолаушыға көлiк туралы тиiстi заң актiлерiнде белгiленген мөлшерде айыппұл төлейдi.
2. Жолаушы көлiк құралы жөнелтiлуiнiң кiдiруi себебiнен тасымалдаудан бас тартқан жағдайда, тасымалдаушы жолаушыға кіре ақысын толық көлемiнде қайтаруға, сондай-ақ жолаушыға осындай кiдiртуге байланысты ол шеккен залалдың орнын толтыруға мiндеттi.
705-бап. Жүктiң немесе теңдеме жүктiң жоғалғаны, кем шыққаны және зақымданғаны (бүлiнгенi) үшiн тасымалдаушының жауапкершiлiгi
1. Тасымалдаушы жүктi немесе теңдеме жүктi тасымалдауға қабылдап алған кезден бастап және алушыға, ол жүктi алуға уәкiлеттi адамға немесе теңдеме жүктi алуға уәкiлеттi адамға бергенге дейiн олардың сақталуын қамтамасыз етедi .
2. Егер тасымалдаушы жүктiң немесе теңдеме жүктiң жоғалуы, кем шығуы немесе зақымдануы (бүлiнуi) өзiнiң кiнәсiнен болмағандығын дәлелдемесе, ол жүктiң немесе теңдеме жүктiң жоғалғаны үшiн жауап бередi.
3. Жүктi немесе теңдеме жүктi тасымалдау кезiнде келтiрiлген зиянды тасымалдаушы:
1) жүк немесе теңдеме жүк жоғалған немесе кем шыққан жағдайда - жоғалған немесе кем шыққан жүктiң немесе теңдеме жүктiң құны мөлшерiнде;
2) жүк немесе теңдеме жүк зақымданған (бүлiнген) жағдайда - оның құнының төмендеген сомасының мөлшерiнде, ал зақымданған жүктi немесе теңдеме жүктi қалпына келтіру мүмкiн болмаған кезде - оның құны мөлшерiнде;
3) тасымалдауға құны жарияланып тапсырылған жүк немесе теңдеме жүк жоғалған жағдайда - жүктiң немесе қол жүгiнің жарияланған құны мөлшерiнде өтейдi.
Жүктiң немесе теңдеме жүктiң құны оның сатушының шотында көрсетiлген немесе шартта көзделген бағасының негiзiнде, ал шот болмаған немесе шартта баға көрсетiлмеген кезде, салыстырмалы мән-жайлар кезiнде әдетте осыған ұқсас тауарлар үшiн алынатын бағаны негiзге ала отырып белгiленедi.
4. Тасымалдаушы жүктiң немесе теңдеме жүктiң жоғалуынан, кем шығуынан немесе зақымдануынан (бүлiнуiнен) келтiрiлген белгiленген зиянның орнын
толтыра отырып жөнелтушiге (алушыға), егер бұл ақы жүк құнына кiрмейтiн болса, жоғалған, кем шыққан, бүлiнген немесе зақымданған жүктi немесе теңдеме жүктi тасымалдау үшiн алынған кiре ақысын қайтарады.
5. Жүктiң немесе теңдеме жүктiң сақталмау себептерi туралы тасымалдаушы бiржақты тәртiппен жасаған құжаттар, (коммерциялық акт, жалпы фирманың актiсi және т.б.) дау туған жағдайда, жүктi немесе теңдеме жүктi тасымалдаушының, жөнелтушiнiң не алушының жауапкершiлiгi үшiн негiз бола алатын мән-жайларды куәландыратын басқа құжаттармен бiрге соттың бағалауына жатады.
706-бап. Жүктердi тасымалдау жөнiндегi талаптар мен талап қоюлар
1. Тасымалдаушыға жүктi тасымалдаудан туындайтын талап қоюға дейiн оған көлiк туралы заң актiлерiнде көзделген тәртiпте талаптар қойылуы мiндеттi.
2. Жүк тасымалдаудан туындайтын талаптар бойынша талап қою мерзiмi бiр жыл деп белгiленедi.
3. Осы баптың ережелерi жолаушыны және теңдеме жүктi тасымалдаудан туындайтын талаптарға қолданылмайды.
707-бап. Жолаушының өмiрi мен денсаулығына зиян келтiргенi үшiн тасымалдаушының жауапкершiлiгi
Жолаушының өміріне немесе денсаулығына зиян келтірілуі салдарынан туындайтын мiндеттемелер бойынша тасымалдаушының жауапкершiлiгi, егер заң актiлерiнде немесе шартта тасымалдаушының жоғары жауапкершiлiгi көзделмесе, осы Кодекстiң 47-тарауындағы ережелер бойынша белгiленедi.
35-тарау. Көлік экспедициясы
708-бап. Көлiк экспедициясы шарты
1. Көлiк экспедициясы шарты бойынша бiр тарап (экспедитор) сыйақы үшiн және басқа тараптың (клиенттің - жүк жөнелтушінің, жүк алушының немесе экспедитор қызметтеріне мүдделі өзге тұлғаның) есебiнен жүктi тасымалдауға байланысты экспедиция шартында белгiленген қызмет көрсетулердi орындауға немесе орындауды ұйымдастыруға, оның iшiнде клиенттiң атынан немесе өз атынан жүктi тасымалдау шартын (шарттарын) жасасуға мiндеттенедi.
Көлiк экспедициясы шартында қосымша қызметтер көрсету ретiнде экспорт немесе импорт үшiн талап етiлетiн құжаттарды алу, кедендiк және өзге шарттылықтарды орындау, жүктiң саны мен жай-күйiн тексеру, оны тиеу мен
түсiру, клиентке жүктелетiн баждарды, алымдар мен басқа да шығындарды төлеу , жүктi сақтау, оны баратын жерiнде алу, сондай-ақ өзге де операцияларды орындау мен қызмет көрсетулер сияқты жүктi жеткiзу үшiн қажеттi операцияларды жүзеге асыру көзделуi мүмкiн.
Клиенттің келiсiмiмен экспедитор клиенттің мүддесiн, тарифтер деңгейiн және жеткізу мерзiмдерiн ескере отырып, клиенттің жүгiн көлiктiң қай түрiмен тасымалдауды өзi белгiлей алады.
2. Осы тарауда реттелмеген бөлiгiнде экспедиция шартына қатысты қатынастарға, егер шарт талаптары бойынша экспедитор клиенттiң атынан iс-әрекет жасаса, осы Кодекстiң 41-тарауының ережелерi қолданылады, егер ол өз атынан iс-әрекет жасаса, осы Кодекстiң 43-тарауының ережелерi қолданылады .
Ескерту. 708-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
709-бап. Шарттың нысаны
1. Көлік экспедициясы шарты жазбаша түрде жасалады. 2. Клиент экспедиторға, егер ол оның мiндеттерiн атқаруға қажет болса,
сенiмхат беруге тиіс. Ескерту. 709-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
710-бап. Экспедиторға берiлетiн құжаттар мен басқа да ақпарат
1. Клиент экспедиторға жүктiң қасиеттерi, оны тасымалдау ережелерi туралы құжаттарды, сондай-ақ экспедитордың шартта көзделген мiндеттердi орындауына қажеттi өзге де ақпаратты беруге мiндеттi.
2. Экспедитор клиентке алған ақпараттың анықталған кемшіліктері туралы хабарлауға, ал ақпарат толық болмаған жағдайда, клиенттен қажеттi қосымша деректердi сұрауға мiндеттi.
3. Клиент қажеттi ақпаратты бермеген жағдайда, экспедитор осындай ақпарат берiлгенге дейiн өзiнiң тиiстi мiндеттерiн атқаруға кiрiспеуге құқылы.
4. Осы баптың 1-тармағында көрсетiлген ақпаратты беру жөнiндегi мiндеттердi бұзуына байланысты экспедиторға келтiрген залалдары үшiн клиент жауапты болады.
Ескерту. 710-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
711-бап. Экспедитордың мiндеттерiн үшiншi тұлғаның атқаруы
1. Егер экспедиция шартынан экспедитордың өз мiндеттерiн жеке өзiнiң атқаруы мiндетi туындамаса, экспедитор өз мiндеттерiн орындауға басқа тұлғаларды тартуға құқылы.
2. Мiндеттеменiң орындалуын үшiншi тұлғаға жүктеу экспедиторды шарттың орындалуы үшiн клиенттiң алдындағы жауаптылықтан босатпайды.
712-бап. Ұстап қалу құқығы
Экспедитор жүктi тек оның экспедициялық қызмет көрсетулерi үшiн алуы тиiс сыйақының төленбеуiне байланысты ғана ұстап қалуға құқылы.
713-бап. Көлiк экспедициясы шарты бойынша экспедитордың жауапкершiлiгi
1. Экспедиция шарты жөнiндегi мiндеттердi орындамағаны немесе тиiстi дәрежеде орындамағаны үшiн экспедитор осы Кодекстiң 20-тарауындағы ережелерге сәйкес белгiленген негiздер мен мөлшер бойынша жауапты болады.
2. Егер экспедитор мiндеттi бұзу тасымалдау шарттарының тиiстi дәрежеде орындалмауынан пайда болғанын дәлелдесе, экспедитордың клиент алдындағы жауаптылығы да экспедитордың алдында тиiстi тасымалдаушы жауап беретiн ережелермен белгiленедi.
Ескерту. 713-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
714-бап. Көлiк экспедициясы шартын орындаудан бiржақты бас тарту
1. Клиент немесе экспедитор, бұл туралы басқа тарапқа қисынды мерзiмде ескерте отырып, көлiк экспедициясы шартын орындаудан бас тартуға құқылы.
2. Шартты орындаудан бiржақты бас тарту кезiнде бас тартуды мәлiмдеген тарап екiншi тарапқа шарттың бұзылуынан келтiрiлген залалды өтейдi.
Ескерту. 714-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
36-тарау. Заем
715-бап. Заем шарты
1. Заем шарты бойынша бiр тарап (заем берушi) басқа тараптың (заемшының) меншiгiне (шаруашылық жүргiзуiне, оралымды басқаруына) ақша немесе тектiк белгiлерiмен айқындалған заттарды бередi, ал осы Кодексте немесе шартта көзделген жағдайларда оларды беруге мiндеттенедi, ал заемшы заем берушіге дәл осындай ақша сомасын немесе осы тектегi және сападағы заттардың тең мөлшерiн уақытында қайтаруға мiндеттенедi.
2. Орындалуы ақша немесе тектiк белгiсiмен айқындалған заттарды беруге байланысты шарттарда заем, егер заң актiлерiнде өзгеше белгiленбесе және тиiстi мiндеттемелердiң мәнiне қайшы келмейтiн болса, аванс, алдын ала ақы төлеу, тауарларға (жұмысқа және қызмет көрсетулерге) мерзiмiн ұзартып және бөлiп-бөлiп төлеу түрiнде беру көзделуi мүмкiн.
3. Азаматтар мен заңды тұлғаларға кәсiпкерлiк қызмет ретiнде азаматтардан қарыз түрінде ақша тартуға тыйым салынады және мұндай шарттар маңызсыз болып табылады.
Бұл тыйым салу заемшылар депозиттер қабылдауға уәкiлеттi мемлекеттiк органның лицензиясы бар банктер болған жағдайларда, сондай-ақ шығарылуы заңдарда белгiленген тәртiппен тіркелген бағалы қағаздарға ақшаны айырбасқа қабылдау жағдайларында қолданылмайды.
Ескерту. 715-бапқа өзгерістер енгізілді - ҚР 10.07.2003 № 483 (01.01.2004 бастап күшіне енеді); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
716-бап. Заем шартының нысаны
1. Заем шарты осы Кодекстiң 151-152-баптарының ережелерiне сәйкес нысанда жасалуға тиiс.
2. Заем шарты заемшының облигациясы, қолхаты немесе оған заем берушiнiң белгiлi бiр соманы немесе заттардың белгiлi бiр мөлшерiн бергендiгiн куәландыратын өзге де құжат болған жағдайда да тиiстi жазбаша нысанда жасалды деп танылады.
717-бап. Заем шартын жасасу
Заем шарты, егер осы Кодексте немесе тараптардың келiсiмiнде өзгеше көзделмесе, ақша немесе заттар берiлген кезден бастап жасалды деп есептеледi.
Шартта ақшаны немесе заттарды бөлшектеп (бөлiп-бөлiп) беру көзделген жағдайларда, егер шартта өзгеше көзделмесе, олардың бiрiншi бөлiгi берiлген кезден бастап шарт жасалды деп есептеледi.
718-бап. Қарыз шарты бойынша сыйақы
1. Егер Қазақстан Республикасының заңнамалық актiлерiнде немесе шартта өзгеше көзделмесе, қарыз нысанасын пайдаланғаны үшiн қарыз алушы шартта айқындалған мөлшерде қарыз берушiге сыйақы төлейдi.
Қарыз алушымен – жеке тұлғамен жасалатын қарыз шарты бойынша сыйақы осы Кодекстің 725-1-бабының талаптары ескеріле отырып айқындалады.
2. Банктердің, банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдардың, микроқаржы ұйымдарының және кредиттік серіктестіктердің қарыз алушыларының құқықтарын қорғау қарыз беруге және оған қызмет көрсетуге байланысты қарыз беруші алатын сыйақыны, комиссиялардың барлық түрлерін және өзге де төлемдерді қамтитын және Қазақстан Республикасының заңнамасында айқындалған тәртіппен есептелетін жылдық тиімді сыйақы мөлшерлемесінің шекті мөлшерін белгілеу арқылы қамтамасыз етіледі.
Жылдық тиімді сыйақы мөлшерлемесінің шекті мөлшері Қазақстан Республикасы Ұлттық Банкінің нормативтік құқықтық актісімен айқындалады.
3. Егер қарыз шарты бойынша қарыз алушыға заттар берiлсе, сыйақы төлеу оның көлемi мен нысаны (ақшалай немесе заттай) шартта көзделген жағдайда жүргiзiледi.
4. Сыйақы төлеудiң тәртiбi мен мерзiмдерi қарыз шартында белгiленедi. Егер сыйақы төлеу тәртiбi мен мерзiмдерi шартта белгiленбесе, ол ай сайын
төленедi. 5. Егер қарыз алушы қарыз нысанасын мерзiмiнде қайтармаса, сыйақы қарыз
нысанасын пайдаланған бүкiл кезеңге төленедi. Ескерту. 718-бап жаңа редакцияда - ҚР 2011.02.10 N 406-IV (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), өзгеріс енгізілді - ҚР 2012.07.05 N 30-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 2012.11.26 N 57-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 168-VІ (алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
719-бап. Заем нысанасын беру
1. Заем нысанасы шартта көзделген мерзiмде, мөлшерде және жағдайда берiледi.
Егер шартта өзгеше көзделмесе, заем нысанасы оны заемшыға берген немесе оның банктегi шотына тиiстi ақша қаражаты есептелген кезден бастап берiлген деп есептеледi.
2. Егер заң актiлерiнде немесе шартта өзгеше белгiленбесе, заемшы заем берудiң шартта белгiленген мерзiмiне дейін заем берушiнi бұл туралы хабардар ете отырып, заем алудан толық немесе iшiнара бас тартуға құқылы.
3. Тектiк белгiлерiмен айқындалатын заттарды заемға берген кезде олардың саны, түр-түрi, жинақтылығы, сапасы, ыдысы және (немесе) буып-түйiлуi туралы шарттарды орындау, егер шартта өзгеше көзделмесе, тауарларды сатып алу-сату шарттары туралы (осы Кодекстiң 406-492-баптары) ережелерге сәйкес жүзеге асырылуға тиiс.
720-бап. Нысаналы заем
1. Егер шартта өзгеше көзделмесе, заем нысанасыз болады және заемшы алынған заем нысанасын өз қалауы бойынша пайдаланады.
2. Шарт заемшының заем нысанасын белгiлi бiр мақсатқа пайдалануы шартымен (нысаналы заем) жасалған жағдайда, заем берушiнiң заемның нысаналы пайдаланылуын бақылауды жүзеге асыруға құқығы бар, ал заемшы заем берушiнiң осындай бақылауды жүзеге асыру мүмкiндiгiн қамтамасыз етуге мiндеттi.
3. Заемшы заем нысанасын нысаналы пайдалану жөнiндегi мiндеттердi, сондай-ақ осы баптың 2-тармағында көзделген мiндеттердi орындамаған жағдайда заем берушi заем нысанасының берiлмеген бөлiгiне қатысты шартты орындаудан бас тартуға және заемшыдан заем нысанасын және ол бойынша сыйақыны мерзiмiнен бұрын қайтаруды талап етуге құқылы.
721-бап. Заемшының мiндеттемелерiн орындауын қамтамасыз ету
1. Заем нысанасын қайтару және сыйақы төлеу жөнiндегi мiндеттемелердi орындау осы Кодексте көзделген әдiстермен қамтамасыз етiлуi мүмкiн. Бұл жағдайда заемшы, егер заң актiлерiнде немесе шартта өзгеше белгiленбесе, заем берушiге заемның қамтамасыз етiлуiн бақылауға мүмкiндiк беруге мiндеттi.
2. Заемшы заем нысанасын қайтаруды және сыйақы төлеуді қамтамасыз ету жөнiндегi мiндеттердi орындамаған кезде, сондай-ақ заем
берушi жауап бермейтiн мән-жайлар бойынша қамтамасыз етудi жоғалтқан немесе оның шарттарын нашарлатқан жағдайда заем берушi заем нысанасының тиiсiнше ұсынылмаған бөлiгiне қатысты шартты орындаудан бас тартуға және
заемшыдан заем нысанасын және ол бойынша сыйақыны мерзiмiнен бұрын қайтаруды талап етуге құқылы.
722-бап. Заем нысанасын қайтару
1. Заемшы шартта көзделген тәртiппен және мерзiмде заем нысанасын қайтаруға мiндеттi.
Егер шартта өзгеше көзделмесе, заем нысанасы оны заем берушiге берген немесе оның банктегi шотына тиiстi ақша есептелген кезде қайтарылды деп есептеледi.
Егер заем нысанасын қайтару мерзiмi шартта белгiленбесе, оны заемшы ол туралы заем берушi талап еткен күннен бастап отыз күн iшiнде қайтаруы тиiс.
Сыйақы төлеу туралы шартсыз берiлген заем нысанасы мерзiмiнен бұрын қайтарылуы мүмкiн. Сыйақы төлеу шартымен берiлген заем нысанасы заем берушінің келісімімен не, егер ол шартта көзделсе, мерзімінен бұрын қайтарылуы мүмкін.
Егер шартта өзгеше белгiленбесе, заем бойынша сыйақы кез келген уақытта мерзiмiнен бұрын төленуi мүмкiн.
2. Заем берушiнiң келiсiмiмен заемшының мiндеттемелерi: ақша заемы шарты бойынша - борыш есебiне тектiк белгiлерiмен айқындалған заттарды қабылдаумен; заттар заемы шарты бойынша - борыштың есебiне ақша қабылдаумен орындалуы мүмкiн. Аталған заттардың құны тараптардың келiсiмiмен айқындалады.
3. Егер шартта заемды бөлшектеп (бөлiп-бөлiп) қайтару көзделсе, заемшы заем нысанасының кезектi бөлiгiн қайтару үшiн белгiленген мерзiмдi бұзған жағдайда заем берушi заем нысанасының қалған барлық бөлiгiнiң тиесiлi сыйақымен бiрге мерзiмiнен бұрын қайтаруды талап етуге, сондай-ақ кепілге салынған мүлікке өндіріп алуды қолдану арқылы өздерінің талаптарын қанағаттандыруға (осы Кодекстің 2-тармағының 4) тармақшасы)321-бабы құқылы.
4. Егер шартта заем бойынша сыйақыны заем нысанасының өзiн қайтару мерзiмдерiнен бұрын төлеу көзделсе, сыйақыны төлеу үшiн белгiленген мерзiм бұзылған жағдайда заем берушi заемшыдан заем нысанасын тиесiлi сыйақымен бiрге мерзiмiнен бұрын қайтаруды талап етуге, сондай-ақ кепілге салынған мүлікке өндіріп алуды қолдану арқылы өздерінің талаптарын қанағаттандыруға ( осы Кодекстің 2-тармағының 4) тармақшасы) құқылы.321-бабы
Ескерту. 722-бапқа өзгерістер енгізілді - ҚР 17.07.2015 № 333-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа
енгізіледі) Заңымен.
723-бап. Заем нысанасын мерзiмiнен бұрын қайтару туралы талапты қанағаттандыру мерзімі
Заем берушi 720-баптың З-тармағында, 721-баптың 2-тармағында, 722- баптың 3 және 4-тармақтарында көзделген негiздер бойынша заем нысанасын мерзiмiнен бұрын қайтару туралы талаптар қойған кезде заем нысанасын қайтарудың және ол бойынша сыйақыны төлеудiң жаңа мерзiмi осы Кодекстiң 722-бабының 1-тармағында белгiленген ереже бойынша есептеледi.
724-бап. Заем шартын даулау
1. Заемшы заем берушiден өзiнiң заем нысанасын (ақшаны немесе заттарды) iс жүзiнде алмағандығын немесе шартта көрсетiлгеннен аз мөлшерде немесе аз санда алынғанын дәлелдей отырып, заем шартын даулауға құқылы.
2. Заем шарты жазбаша түрде жасалуға тиiс жағдайларда (осы Кодекстiң 716- бабы), шарт алдаудың, күш қолданудың, қорқытудың, тараптар өкiлдерiнiң қаскүнемдiк келiсiмiнiң немесе ауыр мән-жайлар тоғысуының ықпалымен жасалған жағдайларды қоспағанда (осы Кодекстiң 159-бабының 9 және 10- тармақтары), оны куәгерлiк көрсетулер арқылы даулауға жол берiлмейдi.
725-бап. Заем шартында мiндеттеменi жаңалау
1. Сатып алу-сату, мүлiктi жалға алу немесе өзге негiздегi мәмiлелерден пайда болған кез келген мiндеттеме тараптардың келiсiмi бойынша заем шартымен ресiмделуi мүмкiн.
2. Мiндеттеменi заем шартына ресiмдеу жаңалау туралы талаптарды (осы Кодекстiң 372-бабы) сақтай отырып жүзеге асырылады және заем шарты үшiн көзделген (осы Кодекстiң 716-бабы) нысанда жасалады. 725-1-бап. Қарыз алушымен – жеке тұлғамен жасалатын қарыз шартының ерекшеліктері
1. Қарыз алушымен – жеке тұлғамен жасалатын қарыз шартының мынадай ерекшеліктері бар:
1) тектік белгілерімен айқындалған, оның ішінде төлемнің кейінге қалдырылуы және бөліп төленуі арқылы берілген ақша немесе заттар қарыз шартының нысанасы болып табылады;
2) дара кәсіпкер болып табылмайтын жеке тұлға қарыз шарты бойынша қарыз алушы ретінде әрекет етеді;
3) қарыз Қазақстан Республикасының ұлттық валютасында беріледі; 4) қарыз шартында осы баптың 3-тармағында көзделген қағидаларға сәйкес
есептелген, жылдық тиімді сыйақы мөлшерлемесі міндетті түрде қамтылуға тиіс; 5) қарыз шарты бойынша жылдық тиімді сыйақы мөлшерлемесі берілген
қарыз сомасының жүз пайызынан, оның ішінде қарызды қайтару мерзімі өзгертілген жағдайда аса алмайды;
6) қарыз шарты бойынша қарыз сомасын қайтару және (немесе) сыйақы төлеу жөніндегі міндеттемені бұзғаны үшін тұрақсыздық айыбының (айыппұлдың, өсiмпұлдың) мөлшері мерзімі өткен әрбір күн үшін орындалмаған міндеттеме сомасының 0,5 пайызынан, бірақ берілген қарыз сомасының жылына он пайызынан аспайды;
7) қарыз нысанасын қоспағанда, сыйақы, тұрақсыздық айыбы (айыппұл, өсiмпұл), комиссиялар және қарыз шартында көзделген өзге де төлемдер сомасын қоса алғанда, қарыз алушының қарыз шарты бойынша барлық төлемі жиынтығында қарыз шартының бүкіл қолданылу кезеңiнде берілген қарыз сомасынан аса алмайды;
8) қарыз шарты бойынша міндеттемелер мен төлемдерді кез келген валюталық баламасына байланыстыра отырып индекстеуге жол берілмейді;
9) қарыз шартының сыйақы, тұрақсыздық айыбы (айыппұл, өсiмпұл), комиссиялар және өзге де төлемдер мөлшерлері туралы талаптары оларды ұлғайту жағына қарай өзгертіле алмайды;
Егер нысанасы тектік белгілерімен айқындалған заттар болып табылатын қарыз шарты бойынша қарыз алушының міндеттемелерін орындау борыш есебіне ақша беру арқылы жүзеге асырылған, ал сыйақының, тұрақсыздық айыбының (айыппұлдың, өсiмпұлдың), комиссиялардың және қарыз шартында көзделген өзге төлемдердің төленуі мен мөлшері ақшалай нысанда жүзеге асырылса, осындай шартқа осы тармақтың бірінші бөлігі 4), 5), 6), 7), 8) және 9) тармақшаларының талаптары қолданылады.
2. Қарыз алушымен – жеке тұлғамен жасалатын, осы баптың 1-тармағының талаптарына сәйкес келмейтін қарыз шарты мәнсіз болып табылады.
3. Қарыз шарты бойынша жылдық тиімді сыйақы мөлшерлемесін есептеу қағидалары Қазақстан Республикасы Ұлттық Банкінің нормативтік құқықтық актісінде айқындалады.
4. Қарыз алушымен – жеке тұлғамен жасалатын қарыз шартына осы бапта көзделген ерекшеліктер ескеріле отырып, қарыз шартына қатысты қағидалар қолданылады.
5. Осы баптың талаптары осы Кодекстің 718-бабының аталған2-тармағында тұлғалар қарыз берушілер болып әрекет ететін қарыз шарттарына қолданылмайды.
Ескерту. Заң 725-1-баппен толықтырылды – ҚР 02.07.2018 № 168-VІ ( алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
726-бап. Мемлекеттiк заем шарты
1. Мемлекеттiк заем шарты бойынша заемшы - мемлекет, ал заем беруші - азамат немесе заңды тұлға болады.
2. Мемлекеттiк заемдар ерiктi болып табылады. 3. Мемлекеттiк заем шарты заем берушiнiң шығарылған мемлекеттiк
облигацияларды, сондай-ақ заем берушiнiң заемшыдан одан қарызға берілген ақшаны немесе заем талаптарына байланысты өзге де мүліктік баламаны, белгiленген сыйақыны немесе өзге де мүлiктiк құқықтарды осы заемды айналымға шығару шарттарында көзделген мерзiмде алу құқығын куәландыратын басқа да мемлекеттiк бағалы қағаздарды (құжаттық немесе құжаттық емес) алу жолымен жасалады.
4. Мемлекеттiк заем шартынан туындайтын өз мiндеттемелерi бойынша, заемшы тиiстi қазынаның мүлкiмен жауап бередi.
5. Қазақстан Республикасының мемлекеттiк заем қатынастарына қатысу ерекшелiктерi заң актiлерiмен белгiленуi мүмкiн.
727-бап. Банк заемы шарты
1. Банк заемы шарты бойынша заем берушi заемшыға төлемділік, мерзімділік, қайтарымдылық шарттарымен қарызға ақша беруге мiндеттенедi.
1-1. Ислам банкі заем беруші болып табылатын банк заемы шарты бойынша ақша заемы мерзімділік және қайтарымдылық талаптары бойынша және ақшаны пайдаланғаны үшін сыйақы алынбай жүзеге асырылады.
2. Банк заемы шартына осы Кодекстiң 728-бабында көзделген ерекшелiктерiмен қоса заем шартына қатысты ережелер қолданылады.
Ескерту. 727-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.12.23 . N 107 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2009.02.12. N 133-IV ( қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
728-бап. Банктік қарыз шартының және микрокредит беру туралы шарттың ерекшелiктерi
Банктік қарыз шартының және микрокредит беру туралы шарттың мынадай ерекшелiктерi бар:
1) банктік қарыз шарты бойынша банк немесе уәкiлеттi мемлекеттік органның банктік қарыз операцияларына лицензиясы бар өзге де заңды тұлға қарыз берушi ретінде әрекет етеді;
2) микрокредит беру туралы шарт бойынша микроқаржы ұйымы қарыз беруші ретінде әрекет етеді;
3) алдағы уақытта берiлуi мүмкiн ақша банктік қарыз шартының, микрокредит беру туралы шарттың нысанасы болып табылады. Соңғы жағдайда, егер осы шарттарда өзгеше көзделмесе, банктік қарыз шарты, микрокредит беру туралы шарт олар жасалған кезiнен бастап (осы Кодекстiң 393-бабының 1- тармағы) күшiне енген болып есептеледi;
4) банктік қарыз шарты, микрокредит беру туралы шарт жазбаша нысанда жасалуға тиіс. Жазбаша нысанды сақтамау банктік қарыз шартының, микрокредит беру туралы шарттың маңызсыздығына алып келеді;
5) егер Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, банктік қарыз шартында, микрокредит беру туралы шартта банктің немесе уәкілетті мемлекеттік органның банктік қарыз операцияларына лицензиясы бар өзге де заңды тұлғаның, микроқаржы ұйымының шарт талаптарын біржақты өзгерту құқығын көздейтін талап қамтылмайды;
6) Қазақстан Республикасының банк заңнамасында не Қазақстан Республикасының микроқаржы ұйымдары туралы заңнамасында көзделген жағдайларды қоспағанда, банктік қарыз шартына, микрокредит беру туралы шартқа осы Кодекстің 2-тармағының ережелері қолданылмайды;722-бабы
7) қарыз алушы қарыз, микрокредит нысанасының кезекті бөлігін қайтару және (немесе) сыйақы төлеу үшін белгіленген мерзімді күнтізбелік қырық күннен асырып бұзған кезде, банктік қарыз шартына, микрокредит беру туралы шартқа осы Кодекстің 3 және 4-тармақтарының ережелері қолданылады.722-бабы
Банктерге осы банк эмитенті болып табылатын акциялармен қамтамасыз етілген қарыздар не осы акцияларды иеленуге арналған қарыздар беруге тыйым салынады.
Жеке тұлғаларға берілетін ипотекалық қарыз ерекшеліктері "Қазақстан Республикасындағы банктер және банк қызметі туралы" Қазақстан Республикасының айқындалады.Заңында
Ескерту. 728-бап жаңа редакцияда - ҚР 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі); өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 168-VІ (алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
37-тарау. Ақшалай талапты беріп қаржыландыру (факторинг)
729-бап. Ақшалай талапты берiп қаржыландыру (факторинг) шарты
1. Ақшалай талапты берiп қаржыландыру шарты бойынша бiр тарап (қаржы агентi) ақшаны басқа тараптың (клиенттiң) билiгiне бередi немесе беруге мiндеттенедi, ал клиент қаржы агентiне клиенттiң (кредит берушiнiң) осы үшiншi тұлғамен (борышқормен) қатынастарынан туындайтын өзiнiң ақшалай талабын қаржы агентiне бередi немесе беруге мiндеттенедi.
Борышқорға ақшалай талабын клиент қаржы агентіне сонымен бірге клиенттің қаржы агенті алдындағы міндеттемелерін атқаруын қамтамасыз ету мақсатында да беруi мүмкiн.
2. Ақшалай талапты беріп қаржыландыру шарты бойынша қаржы агентінің мiндеттемелерi клиент үшiн бухгалтерлiк есеп жүргiзудi және берудiң нысанасы болып табылатын ақшалай талаптарға (ақшалай талаптар бойынша шоттар ашу) қатысты құжаттар ұсынуды, сондай-ақ клиентке осы талаптарға байланысты өзге де қаржылық қызмет көрсетуді қамтуы мүмкiн.
3. Осы Кодекспен белгiленген (осы Кодекстiң 339-347-баптары) талаптарды беру туралы жалпы ережелер, егер осы тарауда өзгеше көзделмесе, ақшалай талапты берiп қаржыландыруға қолданылады.
730-бап. Ақшалай талапты берiп қаржыландыру туралы шарттың нысаны
Ақшалай талапты берiп қаржыландыру шарты осы Кодекстiң 346-бабында белгіленген талаптарды сақтай отырып жазбаша түрде жасалуға тиiс.
731-бап. Қаржыландыруды алу мақсатындағы берiлген ақшалай талап
1. Төлем мерзiмi келген ақшалай талап (қойылып келген талап) та, болашақта туындайтын ақша алу (келешектегi талап) құқығы да қаржы беру нысанасы болуы мүмкiн.
Беру нысанасы болып табылатын ақша талабы клиенттiң қаржы агентiмен жасасқан шартында қолданылып келген ақшалай талапты шарт жасалған кезде, ал келешектегi талапты - ол туындаған кезден кешiктiрмей бiрыңғайландыруға мүмкiндiк беретiндей болып белгiленуге тиiс.
2. Қолданылып келген ақшалай талап шарт жасалған кезден бастап, егер онда өзгеше көзделмесе, қаржы агентiне ауысты деп есептеледi.
Келешектегi ақшалай талапты беру кезiнде шартта көзделген талапты берудiң нысанасы болып табылатын ақшаны борышкерден алу құқығының өзi пайда болғаннан кейiн қаржы агентiне ауысты деп есептеледi.
Егер ақшалай талапты беру белгiлi бiр оқиғамен байланысты болса, ол осы оқиға басталғаннан кейiн күшiне енедi. Мұндай жағдайда ақшалай талапты берудi қосымша ресiмдеу талап етiлмейдi.
732-бап. Клиенттiң қаржы агентiнiң алдындағы жауапкершiлiгi
1. Егер шартта өзгеше көзделмесе, беру нысанасы болып табылатын ақшалай талаптың жарамсыздығы үшiн қаржы агентiнiң алдында клиент жауапты болады.
2. Егер клиент ақшалай талапты беру құқығына ие болса және осы талапты беру кезiнде борышқордың ол талапты орындамауға құқығы болатын мән-жайлар оған белгiсiз болса, беру нысанасы болып табылатын ақшалай талап жарамды деп танылады.
3. Егер клиент пен қаржы агентiнiң арасындағы шартта өзгеше көзделмесе, клиент қаржы агентi оны орындауды ұсынған жағдайда беру нысанасы болып табылатын талапты борышқордың орындамағаны немесе тиiстi түрде орындамағаны үшiн жауап бермейдi.
733-бап. Талапты беруге тыйым салудың жарамсыздығы
1. Қаржы агентiне ақшалай талапты беру, тiптi клиент пен оның борышкері арасында оған тыйым салу немесе оны шектеу туралы келiсiм болғанда да жарамды болып табылады.
2. Осы баптың 1-тармағында белгіленген ереже клиент пен борышкер арасындағы оған тыйым салу немесе оны шектеу туралы қолда бар келісімді бұза отырып талапты беруге байланысты клиентті борышкер алдындағы міндеттемелерден немесе жауаптылықтан босатпайды.
Ескерту. 733-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
734-бап. Ақшалай талапты кейiн беру
Егер ақшалай талапты берiп қаржыландыру шартында өзгеше көзделмесе, қаржы агентiнiң ақшалай талапты кейiн беруiне жол берiлмейдi.
Шартта ақшалай талапты кейiн беруге жол берiлген жағдайларда оған тиiсiнше осы тараудың ережелерi қолданылады.
735-бап. Борышқордың қаржы агентiне ақшалай талапты орындауы
1. Борышқор қаржы агентiне ол клиенттен немесе қаржы агентiнен ақшалай талаптың аталған қаржы агентiне берiлгендiгi туралы жазбаша хабарлама алған жағдайда төлем жүргiзуге мiндеттi.
Хабарламада орындалуға жататын ақшалай талап нақты белгiленуге және төлем жүргiзiлуi тиiс қаржы агентi көрсетiлуi керек.
2. Борышқордың өтiнiшi бойынша қаржы агентi қисынды мерзiмде борышқорға ақшалай талаптың қаржы агентiне шындығында берiлгенiне дәлелдеме ұсынуға мiндеттi. Егер қаржы агентi бұл мiндеттi орындамаса, борышқор клиенттiң алдындағы өзінің міндеттемелерiн орындау үшiн оған аталған талап бойынша төлем жүргiзуге құқылы.
3. Борышқордың қаржы агентi алдында ақшалай талапты орындауы осы баптың ережелерiне сәйкес борышқорды клиенттiң алдындағы тиiстi мiндеттемелерiнен босатады.
736-бап. Қаржы агентiнiң борышқордан алынған сомаларға құқықтары
1. Егер ақшалай талапты берiп қаржыландыру шарты бойынша клиенттi қаржыландыру одан осы талапты қаржы агентiнiң сатып алуы жолымен жүзеге асырылса, соңғысы борышқордан талапты орындау үшiн алатын барлық сомаға құқықты иемденедi, ал клиент өзi алған сома қаржы агентi клиентке төлеген сомадан аз болғаны үшiн қаржы агентi алдында жауап бермейдi.
2. Егер қаржы агентiне ақшалай талапты беру клиенттiң агент алдындағы өзiнiң мiндеттемесiн орындауды қамтамасыз ету әдiсi ретiнде жүзеге асырылса және талапты берiп қаржыландыру шартында өзгеше көзделмесе, қаржы агентi клиентке есеп табыс етуге және оған талапты берiп қамтамасыз етілген клиент мiндеттемелерi сомасынан асатын соманы беруге мiндеттi. Егер қаржы агентi борышқордан алған ақша клиенттiң қаржы агентiне талапты берумен қамтамасыз етiлген мiндеттемелерi сомасынан аз болып шықса, клиент мiндеттемелердiң қалған бөлiктерi бойынша жауапты болады.
3. Егер ақшалай талапты беріп қаржыландыру шартында өзгеше көзделмесе, осы баптың қағидалары қолданылады.
Ескерту. 736-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
737-бап. Борышқордың қарсы талаптары
Қаржы агентi борышқорға төлем жүргiзудi талап еткен жағдайда, борышқор осы Кодекстiң 370-бабына сәйкес талаптың қаржы агентiне берiлгенi туралы
жазбаша хабарламаны өзi алған уақытта борышқорда болған, клиентпен арадағы шартқа негiзделген өзінің ақшалай талаптарын есепке алуға ұсынуға құқылы.
Егер клиент борышқор алдында мiндеттемелерi бар екенi туралы оған хабарламаса, қаржы агентi есепке алудан бас тартуға құқылы.
738-бап. Қаржы агентi алған сомаларды борышқорға қайтару
1. Клиент борышқормен жасалған шарт бойынша өзiнiң мiндеттемелерiн бұзған жағдайда, соңғысы агентке ауысқан талаптар бойынша өзi төлеген сомаларды, егер борышқордың осындай соманы тiкелей клиенттен алуға құқығы болса, қайтаруды қаржы агентiнен талап етуге құқығы жоқ.
2. Талапты берудiң нәтижесiнде қаржы агентiне төленген соманы тiкелей клиенттен алуға құқығы бар борышқордың қаржы агентiнен бұл сомаларды қайтаруды, егер соңғысының клиент алдындағы талаптың берiлуi бойынша оны қаржыландыруды жүзеге асырудағы мiндеттерiн орындамағаны не борышқордың алдындағы талаптың берiлуiне байланысты қаржыландыруға жататын мiндеттеменi клиенттiң орындамағанын бiле тұра қаржыландыруды жүргiзгенi дәлелденсе, дегенмен де талап етуге құқылы.
738-1-бап. Жобалық қаржыландыру және секьюритилендiру кезiнде ақшалай талап етуді беру
Жобалық қаржыландыру және секьюритилендiру кезiнде ақшалай талап етудің берілуіне орай қаржыландыру ерекшелiктерi Қазақстан Республикасының жобалық қаржыландыру және секьюритилендiру туралы заңнамалық актiсiнде белгiленедi. Егер Қазақстан Республикасының жобалық қаржыландыру және секьюритилендiру туралы заңнамалық актiсiнде өзгеше белгiленбесе, осы тараудың ережелерi жобалық қаржыландыру және секьюритилендiру мәмiлелерiне қолданылады.
Ескерту. 738-1-бап жаңа редакцияда - ҚР 2012.01.12 N 539-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен. 738-2-бап. Мемлекеттік-жекешелік әріптестік және концессия жобаларын қаржыландыру кезінде ақшалай талапты өзгеге беру
Мемлекеттік-жекешелік әріптестік және концессия жобаларын ақшалай талапты өзгеге беріп қаржыландыру ерекшелiктерi Қазақстан Республикасының мемлекеттік-жекешелік әріптестік саласындағы және концессиялар туралы заңнамасында белгiленедi.
Егер Қазақстан Республикасының мемлекеттік-жекешелік әріптестік саласындағы және концессиялар туралы заңнамасында өзгеше белгiленбесе, осы
тараудың ережесi мемлекеттік-жекешелік әріптестік және концессия жобаларын қаржыландыру мәмілелеріне қолданылады.
Ескерту. 37-тарау 738-2-баппен толықтырылды – ҚР 04.07.2018 № 171-VІ ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
38-тарау. Банктік қызмет көрсету
Параграф 1. Жалпы ережелер
739-бап. Банктiк қызмет көрсету шарты
1. Банктiк қызмет көрсету шарты бойынша бiр тарап (банк) екiншi тараптың ( клиенттiң) тапсырмасы бойынша банктiк қызмет көрсетуге, ал клиент, егер шартта өзгеше көзделмесе, осы көрсетiлген қызметке ақы төлеуге мiндеттенедi.
2. Банктiк қызмет көрсету шарты: 1) банктiк шот шарты; 2) ақша аудару шарты; 3) банк салымы шарты; 4) заңдарда немесе тараптардың келiсiмiнде көзделген өзге де шарт түрлері
болып бөлінеді. 2-1. Банкпен банк шоты шартын және (немесе) банк салымы шартын
жасасқан кезде банк шоттары ашылады. 3. Банк клиенттiң өз ақшасына кедергiсiз билік ету құқығына кепiлдiк бере
отырып, банк шотындағы ақшаны пайдалана алады. Ескерту. 739-бапқа өзгеріс енгізілді - ҚР 2012.07.05 N 30-V (алғашқы ресми
жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
740-бап. Банктегі ақшаға билік етуді шектеу
Р Қ А О - н ы ң е с к е р т п е с і ! 1-тармаққа өзгеріс енгізу көзделген - ҚР 21.01.2019 Заңымен (№ 217-VI
алғашқы ресми жарияланған күнінен бастап үш ай өткен соң қолданысқа енгізіледі).
1. Азаматтардың және заңды тұлғалардың банктік шоттардағы ақшаcына тек қана сот актілері негізінде соттар және сот орындаушыларының сот санкциялаған қаулылары негізінде сот орындаушылары Қазақстан Республикасының қылмыстық-процестік және азаматтық процестік заңнамасында және Қазақстан Республикасының атқарушылық іс жүргізу және
сот орындаушыларының мәртебесі туралы заңнамасында белгіленген тәртіппен және негіздер бойынша тыйым салуы мүмкін.
Клиенттің банктік шоттарындағы ақшасына сотқа дейінгі тергеп-тексеруді жүзеге асыратын адам Қазақстан Республикасының қылмыстық-процестік заңнамасында көзделген негіздер бойынша және тәртіппен мүлікке билік етуге уақытша шектеу не мүлікпен мәмілелер және өзге де операциялар жасауға шектеу белгілеуі мүмкін.
Мүлікке билік етуге уақытша шектеу, мүлікпен мәмілелер және өзге де операциялар жасауға шектеулер белгілеуге, мыналарға:
1) мемлекеттік бюджеттен және (немесе) Мемлекеттік әлеуметтік сақтандыру қорынан төленетін жәрдемақылар мен әлеуметтік төлемдерді есепке жатқызуға арналған банктік шоттардағы ақшаға;
2) тұрғын үй төлемдерін есепке жатқызуға арналған банктік шоттардағы ақшаға;
2-1) тұрғын үй төлемдерін пайдалану есебінен жинақталған тұрғын үй құрылысы жинақ ақшасы түріндегі тұрғын үй құрылысы жинақ банктеріндегі банктік шоттардағы ақшаға;
3) нотариус депозиті шарттарында енгізілген ақшаға; 4) "Мемлекеттік білім беру жинақтау жүйесі туралы" Қазақстан
Республикасының сәйкес жасалған білім беру жинақтау салымы туралыЗаңына шарт бойынша банктік шоттардағы ақшаға;
5) банктік шоттардағы әлеуметтік медициналық сақтандыру қорының активтеріне;
6) уәкілетті мемлекеттік орган лицензиядан айырған және (немесе) мәжбүрлеп тарату процесінде тұрған банктердің, сақтандыру (қайта сақтандыру) ұйымдарының, ерікті жинақтаушы зейнетақы қорларының ақшасына;
7) Қазақстан Республикасының мемлекеттік-жекешелік әріптестік саласындағы және концессиялар туралы заңнамасына сәйкес инвестициялық шығындардың өтемақысын есепке жатқызуға арналған банктік шоттардағы ақшаға тыйым салуға жол берілмейді.
Осы тармақтың үшінші бөлігі 7) тармақшасының ережесі мемлекеттік кіріс органдары, сондай-ақ сот актілерінің негізінде соттар және сот орындаушыларының сот санкциялаған қаулылары негізінде сот орындаушылары қоятын, осы Кодекстің 2-тармағында көзделген кезектілікке сәйкес742-бабының бірінші, екінші және үшінші кезектерге жататын талаптар бар шектеулерге қолданылмайды.
2. Заңды тұлғалар мен азаматтардың банктердегі ақшасына тыйым салу мерзімі тиісті істерді жүргізу үшін Қазақстан Республикасының қылмыстық іс
жүргізу және азаматтық іс жүргізу заңнамасында белгіленген мерзімдерден аспауға тиіс.
3. Клиенттің банктік шоттардағы ақшасына тыйым салу туралы актілерге Қазақстан Республикасының заңдарында белгіленген тәртіппен сотқа шағым жасалуы мүмкін.
4. Клиенттің банк шоттары бойынша шығыс операцияларын тоқтата тұру Қазақстан Республикасының заңнамалық актілерінде белгіленген тәртіппен және жағдайларда жүргізіледі.
5. Алып тасталды - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
6. Клиенттің банктік шотына берілген тыйым салу туралы актілер, уәкілетті мемлекеттік органдардың немесе лауазымды адамдардың клиенттің банктік шоттары бойынша шығыс операцияларын тоқтата тұру туралы шешімдері және ( немесе) өкімдері келіп түскен күні мен уақыты ескеріліп орындалады.
Клиенттің банктік шотындағы ақшасын ол жеткіліксіз болған жағдайда және (немесе) ақшаға билік етуге шектеу болған кезде алып қою осы баптың 8- тармағы ескеріле отырып және осы Кодекстің 2-тармағында742-бабының көзделген кезектілікке сәйкес жүргізіледі.
7. Алып тасталды - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
8. Банктегі ақшаға билік етуді шектеу осы Кодекстің 742-бабының 2- тармағында көзделген кезектілікке сәйкес бір кезекке және (немесе) одан жоғары тұрған кезекке жататын талаптар бойынша ақшаны алып қоюға қолданылмайды.
Ескерту. 740-бап жаңа редакцияда - ҚР 2009.07.11. № 185-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз), өзгерістер енгізілді - 2011.02.10 № 406-IV ( алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі), 21.06.2013 № 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 15.01.2014 № 164-V ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 29.09.2014 № 239-V (алғашқы ресми жарияланған күнінен кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 26.07.2016 № 12-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік отыз күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 30.06.2017 № 80-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 12.12.2017 № 114-VI (01.01.2018 бастап қолданысқа енгізіледі); 04.07.2018 № 171-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
741-бап. Клиенттің келісімінсіз ақшаны алып қою
Азаматтар мен заңды тұлғалардың банктердегi және банк операцияларының жекелеген түрлерiн жүзеге асыратын өзге де ұйымдардағы ақшасын олардың келiсiмiнсiз алып қою заңды күшiне енген сот актiсi негiзiнде ғана, сондай-ақ " Салық және бюджетке төленетін басқа да міндетті төлемдер туралы" Қазақстан Республикасының Кодексінде (Салық кодексі), Еуразиялық экономикалық одақтың және (немесе) Қазақстан Республикасының кеден заңнамасында, " Қазақстан Республикасында зейнетақымен қамсыздандыру туралы", "Мiндеттi әлеуметтiк сақтандыру туралы", "Төлемдер және төлем жүйелері туралы", " Мiндеттi әлеуметтiк медициналық сақтандыру туралы" Қазақстан Республикасының заңдарында көзделген жағдайларда жүргiзiлуi мүмкiн.
Мыналарға: 1) мемлекеттік бюджеттен және (немесе) Мемлекеттік әлеуметтік сақтандыру
қорынан төленетін жәрдемақылар мен әлеуметтік төлемдерді есепке жатқызуға арналған банктік шоттардағы ақшаға;
2) тұрғын үй төлемдерін есепке жатқызуға арналған банктік шоттардағы ақшаға;
2-1) тұрғын үй төлемдерін пайдалану есебінен жинақталған тұрғын үй құрылысы жинақ ақшасы түріндегі тұрғын үй құрылысы жинақ банктеріндегі банктік шоттардағы ақшаға;
3) нотариус депозиті шарттарында енгізілген ақшаға; 4) "Мемлекеттік білім беру жинақтау жүйесі туралы" Қазақстан
Республикасының Заңына сәйкес жасалған білім беру жинақтау салымы туралы шарт бойынша банктік шоттардағы ақшаға;
5) әлеуметтік медициналық сақтандыру қорының банктік шоттардағы активтеріне;
6) Қазақстан Республикасының мемлекеттік-жекешелік әріптестік саласындағы және концессиялар туралы заңнамасына сәйкес инвестициялық шығындардың өтемақысын есепке жатқызуға арналған банктік шоттардағы ақшаға өндіріп алуды қолдануға жол берілмейді.
Осы баптың екінші бөлігі 6) тармақшасының ережесі осы Кодекстің 742- 2-тармағында көзделген кезектілікке сәйкес бірінші, екінші жәнебабының
үшінші кезектерге жататын талаптар бойынша ақшаны алып қоюға қолданылмайды.
Ескерту. 741-бап жаңа редакцияда - ҚР 30.06.2017 № 80-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); өзгеріс енгізілді - ҚР 12.12.2017 № 114-VI (01.01.2018 бастап қолданысқа
енгізіледі); 04.07.2018 № 171-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
742-бап. Клиенттiң ақшасын алу кезектiлiгi
1. Клиенттiң банктегi ақшасы клиентке қойылған барлық талапты қанағаттандыру үшiн жеткiлiктi болған жағдайда, егер заң актiлерiнде өзгеше көзделмесе, ақшаны алу клиенттiң немесе өзге тұлғалардың өкiмдерi түсу ретiне қарай (күнтiзбелiк кезектiлiк) жүзеге асырылады.
2. Клиенттiң банктегi ақшасы клиентке қойылған кезектi талапты қанағаттандыру үшiн жеткiлiксiз болған жағдайда банк сомасы аталған талапты қанағаттандыруға жеткiлiктi, клиенттің пайдасына түсетiн ақшаны жинақтайды. Клиентке бiрнеше талап қойылған жағдайда, Қазақстан Республикасының заң актiлерiнде көзделген жағдайларды қоспағанда, банк клиенттiң ақшасын мынадай кезектiлiк бойынша алуды жүргiзедi:
1) бiрiншi кезекте адам өмiрi мен денсаулығына келтiрiлген зиянды өтеу туралы талаптарды, сондай-ақ алименттердi өтеу жөнiндегi талаптарды қанағаттандыруды көздейтiн атқарушы құжаттар бойынша ақша алу жүзеге асырылады;
РҚАО-ның ескертпесі! 2) тармақшаға өзгеріс енгізу көзделген - ҚР 02.08.2015 Заңымен (№ 342-V
01.01.2020 бастап енгізіледі).қолданысқа 2) екiншi кезекте еңбек шарты бойынша жұмыс iстейтiн адамдармен
жұмыстан шығу жәрдемақыларын төлеу және еңбегіне ақы төлеу, авторлық шарт бойынша сыйақылар төлеу, клиенттiң мiндеттi зейнетақы жарналарын, міндетті кәсіптік зейнетақы жарналарын бірыңғай жинақтаушы зейнетақы қорына және әлеуметтiк аударымдарды Мемлекеттік әлеуметтiк сақтандыру қорына, міндетті әлеуметтiк медициналық сақтандыруға аударымдарын және (немесе) жарналарын әлеуметтік медициналық сақтандыру қорына аудару жөніндегі мiндеттемелерi бойынша есеп айырысу үшiн ақша алып қоюды көздейтiн атқару құжаттары бойынша ақша алып қою жүргiзiледi;
3) үшiншi кезекте клиенттiң бюджет алдындағы мiндеттемелерi бойынша ақша алу жүргiзiледі;
4) төртiншi кезекте басқа да ақшалай талаптарын қанағаттандыру көзделген атқарушы құжаттар бойынша ақша алу жүргiзiледi;
5) бесiншi кезекте клиентке қойылған басқа да талаптарды қанағаттандыру үшін күнтiзбелiк кезектiлiк тәртiбiмен ақша алу жүргiзiледi.
Бiр кезекке жататын талаптар бойынша банктен ақша алу тиiстi құжаттардың түскен уақыты бойынша кезектiлiкпен жүргiзiледi.
3. Клиент болып табылатын заңды тұлға тараған кезде кредит берушiлердiң талабын қанағаттандыру осы Кодекстiң 51-бабында
көзделген кезектiлiкпен жүргiзiледi. Ескерту. 742-бапқа өзгерту енгізілді - ҚР 2000.03.29. N 42 , 2003.03.13. N 394 ,
2003.07.09. N 482 , 2004.04.08. N 542 (01.01.2005 бастап күшіне енеді), 2007.05.15 . N 253, 21.06.2013 N 106-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 16.11.2015 № 406-V (01.07.2017 бастап қолданысқа енгізіледі) Заңдарымен.
743-бап. Банк операцияларының жекелеген түрлерiн жүзеге асыратын ұйымдардың банктiк қызмет көрсетуi
Банктiк қызмет көрсетудiң жекелеген түрлерiн банктiк қызметтiң жекелеген түрлерiн жүзеге асыратын ұйымдар көрсетуге құқылы.
Мұндай ұйымдардың банктік қызметтің жекелеген түрлерін көрсетуi осы Кодекспен және Қазақстан Республикасының заңнамалық актілерiмен белгіленген тәртiп бойынша жүзеге асырылады.
Ескерту. 743-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.12.23 . N 107 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
744-бап. Банктiк қызмет көрсетуге ақы төлеу
Клиент банктiк қызмет көрсету шарты бойынша өзiне банк көрсеткен қызметтерге шартта көзделген ережелер мен тәртiп бойынша ақы төлейдi.
745-бап. Банк құпиясы
Банк құпиясын жария етпеуге банк кепiлдiк бередi. Банк құпиясын құрайтын мәлiметтер тiзбесi және оны беру негiздерi банк
қызметiн реттейтiн заң актiлерiмен белгiленедi.
746-бап. Клиенттерге банктiк қызмет көрсету шарттарын бұзғаны үшiн жауапкершiлiк
Банктер және банк операцияларының жекелеген түрлерiн жүзеге асыратын ұйымдар клиенттерге банктiк қызмет көрсетуге байланысты бұзушылықтар жасағаны үшiн Қазақстан Республикасының банк қызметiн реттейтiн заң актiлерiнде және банктiк қызмет көрсету шарттарында белгiленген шекте жауап бередi.
Ескерту. 746-бап жаңа редакцияда - Қазақстан Республикасының 2000.03.29. N 42 Заңымен.
Параграф 2. Банктiк шот
747-бап. Банктiк шот шарты
1. Банктік шот шарты бойынша бiр тарап (банк, банк операцияларының жекелеген түрлерін жүзеге асыратын ұйым) екінші тараптың (клиенттiң) пайдасына түсетiн ақшаны қабылдауға, клиентке немесе үшiншi тұлғаларға тиiстi ақша сомаларын аудару (беру) туралы клиенттiң өкiмдерiн орындауға және банктік шот шартында көзделген басқа да қызметтердi көрсетуге мiндеттенедi.
Банктік шот шартында айқындалған талаптар басталғанға дейін немесе оларды орындағанға дейін ағымдағы немесе жинақ шот иесінің шығыс операцияларын жасау құқығынсыз осы ағымдағы немесе жинақ шоттағы ақшаны депонирлеу (бұғаттау) талабымен үшінші тұлғаның атына банктік шот шарты бойынша ағымдағы немесе жинақ шот ашуға жол беріледі.
Банктік шот ашқан кезде клиентке немесе ол көрсеткен тұлғаға клиенттiң банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы ) ақшасын есепке алу мақсаты үшін тараптар келiскен шарттармен клиенттiң жеке сәйкестендіру коды берiледi. Клиенттiң жеке сәйкестендіру кодын беру, жою, банктiң (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымның) клиент ақшасының есебін жүргізу тәртiбi Қазақстан Республикасының банк заңнамасында айқындалады.
2. Заңды тұлғалар мен азаматтар қызмет көрсету банктерiн өз бетiнше таңдайды және олар банктiк шот шартын бiр банкпен де, бiрнеше банкпен де жасауға құқылы.
3. Егер заң актілерінде немесе тараптар келісімінде өзгеше белгіленбесе, банктік шот шарты мерзімсіз болып табылады.
Ескерту. 747-бапқа өзгерістер енгізілді - ҚР 1999.11.29. № 486; 26.07.2016 № 12-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік отыз күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
748-бап. Банктік шот шартының нысаны
1. Банктiк шот шарты жазбаша түрде жасалуға тиiс. 2. Банктiк шот шартының жазбаша нысанын сақтамау осы шарттың
маңызсыздығына алып келеді.
Ескерту. 748-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
749-бап. Клиенттiң ақшасына билiк ету
1. Банк (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйым) клиенттiң банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы) ақшасын алып қоюды егер заң актiлерiнде немесе банктiк шот шартында өзгеше көзделмесе, клиент өкiмiнiң негiзiнде жүзеге асырады.
Егер заңдарда немесе банктiк шот шартында өзгеше көзделмесе, банк клиенттiң ақшаны пайдалану бағытын белгiлеу мен бақылауға және оның өз қалауынша ақшаға билiк ету құқығына заңдарда көзделмеген шек қоюға құқығы жоқ.
2. Егер ақшаны азамат салған болса, банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы) ақшаға билiк ету құқығын не азаматтың өзi, не ол осы құқықты сенiп берген адам пайдаланады.
Егер ақшаны заңды тұлға салған болса, банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы) ақшаға билiк ету құқығын осы заңды тұлғаның басшысы және (немесе) ол уәкiлдiк берген өзге адамдар пайдаланады.
3. Банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы) ақшаға клиент атынан билiк етудi жүзеге асыратын адамдардың құқықтары клиент банкке (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымға) заңдарда және шартта көзделген құжаттар ұсыну арқылы расталады.
4. Банктiк шот шартында банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы) ақшаға билiк етудiң тәртiбi белгiленуге тиiс. Мұндай тәртiпке қойылатын талаптар банктiк заңдармен белгiленедi.
Ескерту. 749-бапқа өзгеріс енгізілді – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен. 750-бап. Банк (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйым) банктiк шот шарты бойынша орындайтын операциялар
Ескерту. 750-баптың тақырыбы жаңа редакцияда – ҚР 02.07.2018 (№ 166-VІ алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Банктiк шот шартына сәйкес банк (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйыо( �
1) клиент талап еткен кезде ақшаның болуын қамтамасыз етуге; 2) клиенттiң пайдасына түскен ақшаны қабылдауға;
3) клиенттiң үшiншi тұлғалардың пайдасына ақша аудару туралы өкiмiн орындауға;
4) үшiншi тұлғалардың, егер бұл Қазақстан Республикасының заңнамалық актілерінде және (немесе) банктiк шот шартында көзделсе, клиенттiң ақшасын алып қою туралы өкiмдерiн орындауға;
5) банктiк шот шартында белгiленген тәртiп бойынша клиенттен қолма-қол ақша алуды және оған берудi жүзеге асыруға;
6) клиенттiң талап етуi бойынша клиенттiң банктегi (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымдағы) ақша сомасы және жүргiзiлген операциялар туралы ақпаратты шартта көзделген тәртiппен беруге;
7) клиентке шартта, заңдарда және банктiк тәжiрибеде қолданылатын іскерлік айналым дағдыларында көзделген өзге де банктік қызмет көрсетуге мiндеттi.
2. Банк (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйым) клиенттiң пайдасына келiп түскен ақшаны қабылдауға, сондай-ақ клиенттiң ақшасын алып қоюды немесе оның ақшасын берудi, егер заң актiлерiнде және соларға сәйкес Қазақстан Республикасының Ұлттық Банкi шығарған нормативтiк құқықтық актiлерде өзге мерзiмдер көзделмесе, оның бір ізге түсірілген дербес коды бойынша тиісті нұсқаумен банкке (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымға) келiп түскен күннен кейiнгi келесi күннен кешiктiрмей, сондай операцияларды көрсете отырып жүргiзуге мiндеттi.
Ескерту. 750-бапқа өзгерту енгізілді - ҚР 2009.07.11. N 185-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
751-бап. Ақшаны пайдаланғаны үшін сыйақы
Банктегi ақшаны пайдаланғаны үшiн банк осы баптың ережелерін ескере отырып, шартта белгiленетiн мөлшер мен тәртiп бойынша сыйақы төлейдi.
Ағымдағы банктік шотта орналастырылған ақшаны пайдаланғаны үшін сыйақы төленбейді.
Банк қолма-қол ақшасыз төлемдер мен ақша аударымдарын жүзеге асырғаны үшін қолма-қол ақшасыз төлемдер мен ақша аударымдарының сомасынан банктік шот шартында айқындалған кірісті төлеуі мүмкін.
Ескерту. 751-бапқа өзгерту енгізілді – ҚР 1999.11.29. N 486 Заңымен; 02.07.2018 № 168-VІ (01.01.2019 бастап қолданысқа енгізіледі) Заңдарымен.
752-бап. Банктiк шот шартын бұзу
1. Банктiк шот шарты, егер заңдарда немесе шартта өзгеше көзделмесе, клиенттiң өтiнiшi бойынша кез келген уақытта бұзылады.
2. Банктік шот шартын бұзу клиенттің бірыңғайландырылған дербес кодын жою үшiн негiз болып табылады.
3. Банкте (банк операцияларының жекелеген түрлерін жүзеге асыратын ұйымда) қалған ақша клиентке берiледi не оның нұсқауы бойынша үшiншi тұлғалардың пайдасына аударылады (алып қойылады).
Ескерту. 752-бапқа өзгеріс енгізілді – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
753-бап. Банктердiң банктiк шоттары
Осы тараудың ережелерi, егер заң актiлерiнде немесе оларға сәйкес қабылданған Қазақстан Республикасы Ұлттық Банкінің нормативтiк құқықтық актiлерiнде өзгеше көзделмесе, банктердiң банктiк шоттарына қолданылады.
Параграф 3. Ақша аудару
754-бап. Ақша аудару туралы шарт
1. Ақша аудару туралы шарт бойынша бiр тарап (банк) екiншi тараптың ( клиенттiң) тапсырмасы бойынша клиентке бiрыңғайландырылған дербес код бермей-ақ үшiншi тұлғаға ақша аударуға мiндеттенедi.
2. Банктiң клиентке бiрыңғайландырылған дербес код бермей-ақ ақша аудару тәртiбi банк қызметiн реттейтiн заң актiлерiмен белгiленедi.
755-бап. Ақша аудару туралы шарттар жасасу
Егер банк қызметін реттейтін заң актілерінде өзгеше көзделмесе, егер банк клиенттiң тапсырмасын клиент оған осындай банктiк қызмет көрсету туралы ұсыныс жасаған кезде орындауға қабылдаған жағдайда, банктік шот ашпай-ақ ақша аудару туралы шарт жасалған болып есептеледi.
Параграф 4. Банк салымы
756-бап. Банк салымы шарты
Банк салымы шарты бойынша бiр тарап (банк) екiншi тараптан (салымшыдан ) ақша (салым) алуға, олар бойынша банктік салым шартында көзделген мөлшерде және тәртiппен сыйақы төлеуге және салымның осы түрi үшiн заң актiлерiнде және шартта көзделген жағдайлар мен тәртiп бойынша салымды қайтаруға мiндеттенедi.
Салымдар түрiнiң әрқайсысы бойынша банктер клиенттiң ақшасын есепке алу мақсатында оған бiрыңғайландырылған дербес код бередi. Бiрыңғайландырылған дербес кодты беру, жою, клиенттiң ақшасына есеп жүргiзу тәртiбi Қазақстан Республикасының банк заңдарында белгiленедi.
Банк салымдарының ерекшеліктері Қазақстан Республикасының банк қызметін реттейтін заңнамалық актілерінде белгіленуі мүмкін.
Ескерту. 756-бапқа өзгерту енгізілді - Қазақстан Республикасының 2003.07.09 . N 482 , 2009.02.12. N 133-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
757-бап. Банк салымдарының түрлерi
1. Салымдарды қайтару талаптарына қарай олар мынадай түрлерге бөлiнедi: 1) талап етiлмелi салым; 2) мерзiмдi салым; 2-1) жинақ салымы; 3) шартты салым.
2. Талап етiлмелi салым салымшының бiрiншi талап етуi бойынша толық немесе iшiнара қайтарылуға тиiс.
3. Мерзiмдi салым белгiлi бiр мерзiмге енгізіледі. Егер банктік салым шартында өзгеше көзделмесе, салымшы мерзімді
салымды белгiленген мерзiм өткенге дейiн талап еткен жағдайларда, салым бойынша сыйақы талап етілгенге дейінгі салым бойынша белгіленген мөлшерде төленедi.
4. Жинақ салымы белгiлi бiр мерзiмге енгізіледі. Салымшы жинақ салымын белгiленген мерзiм өткенге дейiн талап еткен
жағдайларда, салым бойынша сыйақы талап етілгенге дейінгі салым бойынша белгіленген мөлшерде төленеді.
5. Шартты салым банктік салым шартында айқындалған мән-жайлар басталғанға дейін енгізіледі.
Егер банктік салым шартында өзгеше көзделмесе, салымшы шартты салымды банктік салым шартында айқындалған мән-жайлар басталғанға дейін талап еткен жағдайларда, салым бойынша сыйақы талап етілгенге дейінгі салым бойынша белгіленген мөлшерде төленеді.
Ескерту. 757-бапқа өзгеріс енгізілді – ҚР 02.07.2018 № 168-VІ (алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
758-бап. Банк салымы шартының нысаны
1. Банк салымы шарты жазбаша түрде және заң актiлерiнде, Қазақстан Республикасы Ұлттық Банкiнiң нормативтiк құқықтық актiлерінде және банктiк тәжiрибеде қолданылып жүрген іскерлік айналым дағдыларында белгіленген талаптарға сай жасалуға тиіс.
2. Салымшының талап етуi бойынша салымның жасалғанын куәландыратын құжат не оның атына, не белгiлi бiр үшiншi тұлғаның атына ресiмделуi мүмкiн.
3. Банктік салым шартының жазбаша нысанын сақтамау осы шарттың маңызсыздығына алып келеді.
Ескерту. 758-бапқа өзгерістер енгізілді - ҚР 2007.01.12. N 225; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
759-бап. Банк салымы шартының қолданылу мерзiмi
1. Банк салымы шарты салым сомасы банкке келiп түскен күннен бастап жасалған болып саналады.
2. Талап етiлмелi банк салымы шарты мерзiмсiз болып табылады. 2-1. Банктік салым шартында көзделген салым мерзімі банкке "Қазақстан
Республикасындағы банктер және банк қызметі туралы" Қазақстан Республикасының сәйкес төлемге қабілетсіз банктер санатынаЗаңына жатқызылған банкті реттеу шаралары қолданылған кезде өзгертілуі мүмкін.
3. Салымшы мерзiмдi және (немесе) жинақ салымдарының сомасын олардың мерзiмi өткеннен кейiн, сондай-ақ шартты салымның сомасын банк салымы шартты салымның қайтарылуын байланыстыратын мән-жайлар пайда болғаннан кейiн талап етпесе, егер шартта өзгеше көзделмесе, банк салымы шарты талап етiлмелi салым шарттарымен ұзартылған болып саналады.
Ескерту. 759-бапқа өзгеріс енгізілді – ҚР 02.07.2018 № 168-VІ (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
760-бап. Банк салымы шарты бойынша сыйақы
1. Банк салымшыға осы баптың ережелерін ескере отырып, банк салымы шартында белгiленетiн мөлшерде салым сомасына сыйақы төлейдi.
1-1. Талап етілгенге дейінгі салым бойынша сыйақы мөлшері банктік салым шартымен белгіленеді, бірақ ол жылдық 0,1 пайыздан аса алмайды.
1-2. Мерзімді және жинақ салымдары бойынша сыйақы мөлшерлемесі тіркелген немесе құбылмалы болуы мүмкін.
Мөлшері банктік салым шартында көзделген салым мерзімі ішінде төмендетілмейтін сыйақы мөлшерлемесі тіркелген сыйақы мөлшерлемесі болып табылады.
Мөлшері банктік салым шартында көзделген талаптарға сәйкес өзгертілетін сыйақы мөлшерлемесі құбылмалы сыйақы мөлшерлемесі болып табылады.
Банктік салым шарты бойынша құбылмалы сыйақы мөлшерлемесін есептеу тәртібі, оның қолданылу шарттары Қазақстан Республикасы Ұлттық Банкінің нормативтік құқықтық актісінде айқындалады.
2. Осы баптың 3-тармағында белгіленген ерекшеліктерді ескере отырып, банк салымы шартында көзделген сыйақы мөлшерін ұлғайту немесе салым мерзімін ұзарту жағдайларын қоспағанда, банк салымдар бойынша сыйақы мөлшерiн бiржақты тәртiппен өзгертуге құқылы емес.
3. Банктік салым шарты бойынша сыйақы мөлшері банкке "Қазақстан Республикасындағы банктер және банк қызметі туралы" Қазақстан Республикасының сәйкес төлемге қабілетсіз банктер санатынаЗаңына жатқызылған банкті реттеу шаралары қолданылған кезде өзгертілуі мүмкін.
Ескерту. 760-бапқа өзгерістер енгізілді - ҚР 1999.11.29 N 486, 2011.02.10 N 406-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 26.07.2016 № 12-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік отыз күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 168- VІ (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
761-бап. Банк салымы шарты бойынша сыйақы төлеудiң тәртiбi
1. Банк салымы шарты бойынша банк сыйақыны банк салымы шартында белгiленген тәртiппен және мөлшерде төлейдi.
2. Егер банк салымы шартында өзгеше көзделмесе, осы баптың 3-тармағында көрсетілген банктік салымдар бойынша сыйақы салымшыға оның талап етуi бойынша әр тоқсан аяқталғаннан кейiн салым сомасынан бөлек төленедi, ал бұл мерзiмде талап етiлмеген сыйақының сомасы салымның сыйақы төленетiн сомасын арттырады.
Салымды қайтару кезiнде салымшыға сол кездегі оған тиесілі барлық сыйақы төленедi.
3. Талап етiлмелi салым бойынша салымшы салым бойынша өзiне тиесiлi сыйақыны салым сомасынан бөлек алуға құқылы.
Мерзімді салымдар бойынша салымшы салым бойынша өзіне тиесілі сыйақыны салым мерзімі өткенге дейін оның сомасынан бөлек алуға құқылы. Егер банктік салым шартында өзгеше көзделмесе, мерзімді салымдар бойынша сыйақы мөлшері банк талап етілгенге дейінгі салымдар үшін қолданатын мөлшерге қолданылатындай түрде қайта есептеледі. Салым мерзiмi өткен соң салымшы өзінің салымды талап ететініне немесе талап етпейтініне қарамастан, өзiне тиесілі сыйақыны толық мөлшерде алуға құқылы (осы Кодекстiң 759-
3-тармағы).бабының Шартты салым бойынша салымшының оған тиесiлi сыйақыны салымның
сомасынан бөлек алуы банк салымы шартында белгiленген тәртiппен жүргiзiледi. 4. Сыйақы салымды қайтару үшiн көзделмеген мерзiмдерде және нысанда
төленедi (осы Кодекстiң 765-бабы). 5. Салымды толық қайтару кезiнде салымшыға сол кездегi өзiне тиесiлi
барлық сыйақы төленедi. Ескерту. 761-бапқа өзгеріс енгізілді – ҚР 02.07.2018 № 168-VІ (алғашқы
ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
762-бап. Салымдарды енгiзу
1. Егер банк салымы шартында өзгеше көзделмесе, салымшылар салымдарды қолма-қол ақшамен де, қолма-қол ақшасыз аудару арқылы да енгiзедi.
2. Талап етiлмелi салым кезiнде салымшы ақшаны кез келген сомада және кез келген кезеңде жекелеген жарналармен енгiзе алады. Бұл ретте жаңа түскен сомалар бойынша сыйақы есептеу, сыйақының банкке ақша түскен күнi қолданылған мөлшерiне қарай жүргiзiледi.
Мерзiмдi салымдар, жинақ салымдары сондай-ақ шартты салымдар кезiнде, егер банк салымы шартында өзгеше көзделмесе, салымшы ақшаны бiр жолғы жарна түрiнде енгiзедi.
Ескерту. 762-бапқа өзгеріс енгізілді – ҚР 02.07.2018 № 168-VІ (алғашқы ресми жарияланған күнінен бастап күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
763-бап. Үшiншi тұлғалардың салымға ақша енгiзуi
Банкке үшiншi тұлғалардан салымшының атына оның бiрыңғайландырылған дербес коды туралы қажеттi деректер көрсетiле отырып түскен ақша салымға енгiзiледi.
764-бап. Үшiншi тұлғалардың пайдасына салымдар
1. Банкке салым белгiлi бiр үшiншi тұлғаның атына енгiзiлуi мүмкiн. Пайдасына салым енгiзiлетiн азаматтың атын (осы Кодекстiң 15-бабы) немесе
заңды тұлғаның атауын (осы Кодекстiң 38-бабы) көрсету тиiстi банк салымы шартының елеулi талабы болып табылады.
Шарт жасасу қарсаңында қайтыс болған азаматтың не сол кезде болмаған заңды тұлғаның пайдасына банктік салым шарты маңызсыз болады.
2. Үшiншi тұлға салымшының құқығынан жазбаша түрде бас тартқан жағдайда банк салымы шартын жасаған тұлға салымға өзi енгiзген ақшаға қатысты салымшының құқықтарын пайдалана алады.
3. Үшiншi тұлғаның пайдасына шартты салым енгiзген жағдайда, ол банк салымы шартында көзделген талаптарды сақтаған кезде ғана оларға билiк етуге құқылы. Бұл талаптар басталғанға дейiн үшiншi тұлға салымға тек салым енгiзген тұлғаның жазбаша рұқсаты бойынша ғана билiк ете алады.
Салым бойынша талап, банк салымы шартында жазбаша түрде жазылуға, заң актiлерiне қайшы келмеуге және салымды берудi қиындататын түсiнiксiздiгi болмауға тиiс.
Шартты салымды алу үшiн үшiншi тұлға банкке белгiленген талаптарды орындағандығын растайтын құжаттар табыс етедi.
Үшiншi тұлғаның пайдасына шартты салым енгiзген тұлғаның: үшiншi тұлға осы талаптың орындалғанын растайтын құжат ұсынбаған
жағдайда, өзi белгiлеген талаптарды өзгертуге; үшiншi тұлға салым енгiзу кезiнде көрсетiлген талапты орындамаған не ол банк салымы шартында көзделген талапты орындағанға дейін қайтыс болған жағдайда салымға билік етуге құқығы бар.
4. Yшiншi тұлғаның пайдасына шарт туралы ережелер (осы Кодекстiң 391- бабы), егер ол осы баптың ережелерiне қайшы келмесе, үшiншi тұлғаның пайдасына банк салымы шартына қолданылады.
Ескерту. 764-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
765-бап. Банк салымдарын қайтару
1. Банк салымды немесе оның бiр бөлiгiн салымшының алғашқы талап етуi бойынша:
1) талап етiлмелi салымдар бойынша - салымшы талаптарының келiп түсуi бойынша;
2) мерзiмдi салымдар және жинақ салымдары бойынша - банк салымы шартында көзделген мерзiмнiң басталуы бойынша;
3) шартты салымдар бойынша - банк салымы шарты басталуымен салымның қайтарылуын байланыстыратын мән-жайлар болған кезде беруге мiндеттi.
2. Салымшының мерзiмдi салымды мерзiмiнен бұрын ішінара және (немесе) толық қайтарып алуға құқығы бар.
Салымшының жинақ салымын мерзімінен бұрын толық қайтарып алуға құқығы бар.
2-1. Банк мерзімді салымды немесе оның бір бөлігін салымшының талабы келіп түскен кезден бастап күнтізбелік жеті күннен кешіктірмей беруге міндетті.
Банк жинақ салымын салымшының талабы келіп түскен кезден бастап күнтізбелік отыз күннен ерте емес беруге міндетті.
3. Шартты салымдар бойынша салымшының банк салымы шарты салымның қайтарылуын байланыстыратын мән-жайлар басталғанға дейiн салымды қайтарып алуға құқығы бар. Бұл ретте банк салымды немесе оның бiр бөлiгiн осы баптың 2-тармағында көзделген мерзiмде беруге мiндеттi.
4. Салымшының мерзiмдi салымды мерзiмiнен бұрын алу құқығынан бас тартуы туралы банктік салым шартының, сондай-ақ шартты салымның ережесi, көзделген талаптар басталғанға дейiн маңызсыз болып табылады.
5. Шетел валютасымен енгiзiлген салым, егер заң актiлерiнде, банк салымы шартында немесе тараптардың қосымша келiсiмiнде өзгеше көзделмесе, нақ сондай валютамен қайтарылуға тиiс.
6. Банк салымшының салымды немесе оның бiр бөлiгiн қайтару туралы талабын осы баптың 2-3-тармақтарында көзделген мерзiмде орындамаған жағдайда сыйақыны төлеу банк салымы шартында көзделген талаптарда жалғастырылады.
6-1. Осы баптың қағидалары кепіл нысанасы болып табылатын салымдарға, сондай-ақ қайтарылуы "Тұрғын үй қатынастары туралы" Қазақстан Республикасы Заңының талаптарымен шектелген салымдарға қолданылмайды.
7. Банктік салымды беру: 1) "Қылмыстық жолмен алынған кірістерді заңдастыруға (жылыстатуға) және
терроризмді қаржыландыруға қарсы іс-қимыл туралы" Қазақстан Республикасының көзделген;Заңында
2) төлемге қабілетсіз банктер санатына жатқызылған банкті реттеу шаралары қолданылған не банкті лицензиядан айырған кезде "Қазақстан Республикасындағы банктер және банк қызмет туралы" Қазақстан Республикасының көзделген негіздер бойынша және тәртіппенЗаңында тоқтатыла тұруы мүмкін.
Ескерту. 765-бапқа өзгерістер енгізілді - ҚР 2000.03.29 N 42, 2009.08.28 N 192 -IV (2010.03.08 бастап қолданысқа енгізіледі), 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа
енгізіледі), 2012.06.21 N 19-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 2014.06.10 № 206-V ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 12.12.2017 № 114-VI ( 01.01.2018 бастап қолданысқа енгізіледі); 02.07.2018 № 168-VІ (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
766-бап. Банк салымын қайтаруды қамтамасыз ету
Банк өзі алған салымдарды қайтаруды қамтамасыз ету үшін пайдалануға мiндеттi амалдар мен әдiстер заң актiлерiмен, Қазақстан Республикасы Ұлттық Банкiнiң нормативтiк құқықтық актiлерiмен және банк салымы шартымен белгiленедi.
767-бап. Банк салымы бойынша жасалған операциялар үшiн банк көрсеткен қызметтерге ақы төлеу
Салымшы банк салымдары бойынша жасалған операциялар жөнiндегi банк көрсеткен қызметтерге шартта көзделген тәртiппен ақы төлейдi.
39-тарау. Сақтау Параграф 1. Сақтау туралы жалпы ережелер
768-бап. Сақтау шарты
1. Сақтау шарты бойынша бiр тарап (сақтаушы) оған екiншi тараптың (жүк берушiнiң) берген затын сақтауға және бұл затты сақталған күйiнде қайтаруға мiндеттенедi.
2. Сақтау шарты зат сақталуға берiлген кезден бастап жасалған деп танылады. 3. Қозғалмайтын мүлiктi күзетуге осы тараудың күшi қолданылмайды.
769-бап. Затты сақтауға қабылдау туралы шарт
1. Сақтауды кәсiпкерлiк қызмет ретiнде жүзеге асыратын сақтаушы шарт бойынша өзiне жүк берушiнiң затын сақтауға қабылдау және жүк берушiнiң берген затын осы тараудың ережелерiне сәйкес сақтау мiндеттемесiн өз мойнына алуы мүмкiн.
2. Шарт бойынша өзiне затты сақтауға қабылдау мiндеттемесiн алған сақтаушының бұл заттың өзiне сақтауға берiлуiн талап етуге құқығы жоқ. Алайда шартта көзделген мерзiмде затты сақтауға бермеген жүк берушi, егер заң
актiлерiнде немесе шартта өзгеше көзделмесе, сақталмай қалуға байланысты келтiрiлген залалдар үшiн сақтаушының алдында жауапты болады.
3. Егер жүк берушi сақтаушының қызметiнен бас тартқандығы туралы қисынды мерзiмде мәлiмдеген болса, ол затты сақтауға бермегенi үшiн жауапкершiлiктен босатылады.
4. Егер шартта өзгеше көзделмесе, шартта келiсiлген мерзiмде зат сақталуға өткізілмеген, ал бұл мерзiм шарт жасалған күннен бастап отыз тәулiк өткенге дейiн белгiленбеген жағдайларда сақтаушы затты сақтауға қабылдау мiндетiнен босатылады.
770-бап. Затты сақтауға қабылдау мiндетi
Өзiнiң кәсiпкерлiк қызметiне қарай сақтауды жүзеге асыратын сақтаушының, егер заң актiлерiнде өзгеше белгiленбесе, техникалық мүмкіндік бола тұра затты сақтауға қабылдаудан бас тартуға құқығы жоқ. Мұндай жағдайларда сақтау шарттары жария деп танылады (осы Кодекстің 387-бабы).
771-бап. Заттарды иесіздендіріп сақтау
1. Иесiздендiрiп сақтау кезiнде сақтауға алынған заттар басқа жүк берушiлердiң сол тектес және сапасы сондай заттарымен араласып кетуi мүмкiн. Жүк берушiге заттар сол тектес және сапасы сондай тең немесе тараптардың келiсiлген мөлшерiнде қайтарылады.
2. Заттарды иесiздендiрiп сақтау кезiнде, егер заң актiлерiнде немесе тараптардың келiсiмiнде белгiленсе, заттар осы тектес және сапасы сондай заттардан оқшау ұсталуға тиіс.
772-бап. Сақтау шартының нысаны
1. Сақтаушының нөмiрлер, жетондар және басқа да заңды деп танылған белгiлер беруi арқылы заттарды қысқа мерзiмге сақтауға сақтау камераларына және вокзалдардың, әуежайлардың, мекемелердiң, кәсiпорындардың, театрлардың, мұражайлардың, стадиондардың, асханалардың және т.б. киiм iлгiштерiне өткiзулердi қоспағанда, сақтау шарты жазбаша түрде жасалуға тиiс.
2. Егер сақтауға алынған заттар сақтаушы жүк берушiге сақтау қолхатын, түбіртек, куәлік, сақтаушы қол қойған өзге де құжаттар беру жолымен куәландырылған болса, шарттың жазбаша нысаны сақталған болып есептеледi.
3. Тұрмыстық қызмет көрсету түрiндегi сақтау шарты ауызша нысанда жасалуы мүмкiн.
4. Сақтауға алынған зат пен сақтаушы қайтарған заттың бірдейлігі туралы дау туған жағдайда куәгерлік айғақтарға жол берiледi.
5. Заттарды төтенше жағдайлар (өрт, су тасқыны және басқалар) кезiнде сақтауға өткiзу, шарттың жазбаша нысаны болмаған жағдайда сақтауға өткiзiлген заттардың құнына қарамастан куәгерлiк айғақтар бойынша дәлелденуi мүмкiн.
773-бап. Сақтау мерзiмi
1. Егер зат талап етiлмелi сақтауға немесе мерзiмi көрсетiлмей өткiзiлген болса, сақтаушы осындай жағдайлардағы заттың әдеттегi сақталу мерзiмi өткен соң жүк берушiнiң заттарды қайтып алуын талап етуге құқылы, бiрақ жүк берушiге затты қабылдап алуға жететiндей қисынды мерзiм беруге мiндеттi.
2. Жүк берушi шарт бойынша сақтаудың өзге мерзiмi көзделгенде де кез келген уақытта сақтаушыдан затты талап етуге құқылы. Алайда бұл жағдайда жүк берушi, егер шартта өзгеше көзделмесе, сақтаушыға мiндеттеменiң мерзiмiнен бұрын тоқтатылуынан туған залалдарды өтеуге мiндеттi.
774-бап. Сақтаушыға сыйақы беру және оның шығындарын өтеу
1. Сақтау шарты бойынша сақтаушыға берiлетiн сыйақы мөлшерi тараптардың келiсiмiмен белгiленедi. Заң актiлерiнде белгiленген жағдайларда сыйақының мөлшерi таксалар, ставкалар, тарифтер бойынша айқындалуы мүмкiн .
2. Тараптардың келiсуiмен немесе заң актiлерiмен сақтаудың тегiн түрi шарттастырылуы мүмкiн. Тегiн сақтау кезiнде жүк берушi сақтаушыға заттарды сақтау үшiн қажеттi, нақты жұмсалған шығындарды өтеуге мiндеттi.
3. Егер заңдарда немесе тараптардың келiсiмiнде өзгеше көзделмеген болса, сақтаушыға сақтағаны үшiн сыйақы сақтау аяқталған соң, ал егер кезең бойынша төлеу көзделген болса - әрбiр кезеңнiң аяқталуы бойынша төленуге тиiс. Егер сақтау, шартта белгiленген сақтау мерзiмiнен бұрын тоқтаса, сақтаушыға сыйақының соған мөлшерлес бөлiгi төленуi тиiс.
4. Егер шартта көзделген мерзiм өткеннен кейін сақтауда тұрған затты жүк беруші қайтарып алмаған болса, ол сақтаушыға затты бұдан әрi сақтағаны үшiн сол бұрынғы мөлшерде сыйақы төлеуге мiндеттi.
5. Егер шартта өзгеше көзделмесе, сақтау бойынша шығындар сыйақының сомасына енгiзiледi. Төтенше шығындар сыйақының сомасына немесе шартта көзделген шығындардың құрамына кірмейдi деп ұйғарылады.
775-бап. Сақтаушының заттардың сақталуын қамтамасыз ету жөнiндегi міндеттерi
1. Сақтаушы өзiне берiлген заттардың сақталуын қамтамасыз ету үшiн шартта көзделген, сондай-ақ басқа да қажеттi барлық шараларды қолдануға мiндеттi.
2. Егер сақтау тегiн жүзеге асырылатын болса, сақтаушы сақтауға алынған затқа өз заты сияқты қамқорлық жасауға мiндеттi.
3. Зат оның табиғи бұзылуы немесе табиғи кемуi ескерiле отырып сақтауға қабылданған күйiнде қайтарылуға тиiс.
4. Шартта көзделген, сондай-ақ, егер затты пайдалану оның сақталуын қамтамасыз етуi үшiн қажет болған жағдайларды қоспағанда, сақтаушының затты пайдалануға құқығы жоқ.
5. Сақтаушы затты қайтарумен қатар, егер шартта өзгеше көзделмеген болса, оны сақтау уақытында алынған нәтижелер мен кiрiстердi де беруге құқылы.
776-бап. Сақтау жағдайларын өзгерту
1. Затты сақтаудың сақтау шартында көзделген жағдайларын өзгерту қажет болған кезде сақтаушы бұл туралы жүк берушiге дереу хабарлауға және оның жауабын күтуге мiндеттi.
2. Заттың жоғалу және бүлiну қаупi туған жағдайда сақтаушы жүк берушiнiң жауабын күтпестен, сақтаудың шартта көзделген әдiсi мен орнын өзгертуге мiндеттi (осы баптың 1-тармағы).
3. Егер зат сақталу кезiнде бүлiнуге ұшыраса немесе оның сақталуын қамтамасыз етуге мүмкiндiк бермейтiн және жүк беруші тарапынан шаралар қолдануды күтуге болмайтын басқа жағдайлар туындағанда, сақтаушы сақтау және сату бойынша өз шығындарын өтей отырып, затты немесе оның бiр бөлiгiн сатуға құқылы.
777-бап. Затты үшiншi тұлғаға сақтауға беру
1. Егер заң актiлерiнде немесе шартта өзгеше көзделмеген болса, сақтаушының жүк берушiнiң келiсiмiнсiз, егер бұл орайда жүк берушiнiң мүдделерiндегi қажеттiлiк тумаса және сақтаушы оның келiсуiн алу мүмкiндiгiнен айырылса, затты үшiншi тұлғаға беруге құқығы жоқ. Заттың үшiншi тұлғаға берiлгендiгi туралы сақтаушы дереу жүк берушiге хабарлауға мiндеттi.
2. Сақтаушы затты сақтауға берген үшiншi тұлғаның iс-әрекетi үшiн жауап бередi.
778-бап. Сақтаушының заттың сақталмағандығы үшiн жауапкершiлiгi
Сақтаушы сақтауға алған заттың жоғалғаны, кем шыққаны немесе бүлiнгенi үшiн жауап бередi. Егер ол заттың жоғалуы, кем шыққаны немесе бүлiнуi өзiнiң кiнәсiнен болмағанын дәлелдесе, жауаптылықтан босатылады.
779-бап. Сақтаушы-кәсiпкердiң жауапкершiлiгi
1. Сақтауды өзiнiң кәсiпкерлiк қызметiне орай жүзеге асыратын тұлға, тек заттың жоғалуы, кем шығуы немесе бүлiнуi дүлей күштiң салдарынан не заттың өзiне тән ерекшелiгiнен, не жүк берушiнiң қасақана пиғылынан немесе өрескел абайсыздығынан болған жағдайларда ғана заттың сақталмағаны үшiн жауаптылықтан босатылады.
2. Егер шартта көзделген сақтау мерзiмi немесе осы Кодекстiң 773-бабында белгiленген тәртiппен сақтаушы көрсеткен мерзiм өткен соң жүк берушi затты қайтарып алмаған болса, оның тарапынан қасақана пиғыл немесе өрескел абайсыздық болғанда ғана сақтаушы бұл заттың жоғалғаны, кем шыққаны немесе бүлiнгенi үшiн жауап бередi.
780-бап. Сақтаушының жауаптылық мөлшерi
1. Заттардың жоғалуынан, кем шығуынан немесе бүлiнуiнен жүк берушiге келтiрiлген шығындарды, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, осы Кодекстiң 350-бабына сәйкес сақтаушы өтейдi.
2. Егер шартта немесе сақтаушы берген өзге де жазбаша құжатта көрсетiлгендей сақтауға өткiзу кезiнде затқа баға беру жүргiзiлген болса, сақтаушының жауаптылығы баға сомасының негiзiнде айқындалады.
3. Тегiн сақтау кезiнде жүк берушiге заттың жоғалуынан, кем шығуынан немесе бүлiнуiнен келтiрiлген залалдар:
1) затты жоғалтқаны және оның кем шыққаны үшiн - жоғалған немесе кем шыққан заттың құны мөлшерiнде;
2) заттың бүлiнгенi үшiн - оның құны төмендеген соманың мөлшерiнде өтеледi.
4. Егер сақтаушы жауап беретін заттың бүлінуі салдарынан, зат сапасының соншалықты өзгергендiгiнен оны бастапқы мақсат бойынша пайдалану мүмкін болмайтын жағдайда, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, жүк берушi одан бас тартуға және сақтаушыдан бұл заттың құнын өтеуді, сондай-ақ басқа да залалдардың орнын толтыруды талап етуге құқылы.
781-бап. Затты алу мерзiмдерiн бұзудың зардабы
1. Жүк берушi осы Кодекстiң 773-бабында көзделген мерзiм аяқталғаннан кейiн сақтауға берiлген затты қайтарып алуға мiндеттi.
2. Жүк берушi өз затын алудан жалтарған жағдайда сақтаушы кемiнде бiр ай бұрын ескерткеннен кейiн, егер заңдарда немесе шартта өзгеше көзделмесе, Қазақстан Республикасының көзделгенАзаматтық iс жүргiзу кодексiнде тәртiппен затты сатуды талап етуге құқылы.
3. Затты сатудан түскен сомалар сақтаушыға тиесiлi сома шегерiлiп тастап жүк берушiге берiледi.
782-бап. Сақтаушыға келтiрiлетiн залалдардың орнын толтыру
Егер сақтаушы заттың сақтауға қабылдағанда бұл ерекшелiктер туралы бiлмесе және бiлуi тиiс болмаса, жүк берушi сақтаушыға затты өз ерекшелiктерiнен туындаған залалдардың орнын толтыруға мiндеттi.
783-бап. Сақтау туралы жалпы ережелердi оның жекелеген түрлерiне қолдану
Егер осы Кодекстiң 784-802-баптарында көзделген сақтаудың жекелеген түрлерi туралы ережелерде және (немесе) басқа да заң актiлерiнде өзгеше белгiленбеген болса, сақтау туралы жалпы ережелер оның жекелеген түрлерiне қолданылады.
Параграф 2. Сақтаудың жекелеген түрлерi
784-бап. Ломбардта сақтау
1. Затты ломбардта сақтау шарты ломбардтың атаулы сақтау түбiртегiн беруiмен ресiмделедi.
2. Ломбардқа сақтауға өткізілетін зат тараптардың келісуі бойынша, осы тектес және сапасы сондай затқа, оны сақтауға қабылдау кезі мен жеріндегі саудада әдетте белгіленетін бағаларға сәйкес бағалануға тиiс.
3. Ломбард сақтауға қабылдаған затты оның осы баптың 2-тармағына сәйкес жүргiзiлген толық бағасының сомасына қарай жүк берушiнiң пайдасына сақтандыруға мiндеттi.
785-бап. Ломбардтан талап етiлмеген зат
1. Жүк берушi затты қайтарып алудан жалтарған жағдайда ломбард оны үш ай бойына сақтауға мiндеттi. Бұл мерзiм өткен соң ломбард талап етiлмеген
затты осы Кодекстiң 781-бабының 2-тармағында белгiленген тәртiппен сатуы мүмкiн.
2. Затты сатудан түскен сомадан сақтағаны үшiн ақы және ломбардқа тиесiлi өзге де төлемдер өтеледi. Қалған соманы ломбард сақтау түбiртегінiң иесiне оны көрсетуі бойынша қайтарады.
786-бап. Құндылықтарды банкте сақтау
1. Банк бағалы қағаздарды, қымбат металдарды, тастарды және өзге де құндылықтарды, сондай-ақ құжаттарды сақтауға қабылдай алады.
2. Құндылықтарды банкте сақтау шарты банктiң жүк берушiге атаулы сақтау құжатын беруiмен ресiмделедi, оны көрсету банктiң жүк берушiге немесе оның өкiлiне сақтаудағы құндылықтарды беруi үшiн негiз болып табылады.
3. Жеке банк сейфiн (сейфтiң ұясын, сақтауға арналған бөлек үй-жайды) пайдалану арқылы құндылықтарды сақтау шарты банктiң құндылықтарды сақтауға қабылдау жөнiнде iс-әрекет жасауы және жүк берушiге сейфтiң кiлтiн, жүк берушiнiң сәйкестендiрме карточкаларын, көрсетушiнiң сейфтi ашу мен одан құндылықтарды алу құқығын куәландыратын өзге де белгi немесе құжат беруi жолымен жасалады.
4. Егер шартта өзгеше көзделмесе, жүк берушi кез келген уақытта сейфтен құндылықтарды алуға, оларды қайта қоюға, сақтаулы жатқан құжаттармен жұмыс iстеуге құқылы. Банктiң бұл орайда жүк берушiнiң құндылықтарды алғандығын және қайтарғандығын есепке алуға құқығы бар.
5. Жүк берушi сейфтегi құндылықтардың бiр бөлiгiн, оның ішінде уақытша алған жағдайда банк құндылықтардың қалған бөлігінің сақталуына жауапты болады.
6. Осы бапта белгiленген құндылықтарды банк сейфiнде сақтау ережелерi банк өз сейфін (сейфтің ұясын, сақтауға арналған бөлек үй-жайды) мүліктік жалдау талабымен басқа тұлғаға пайдалануға берген жағдайда қолданылмайды.
787-бап. Көлiк ұйымдарының сақтау камераларында сақтау
1. Көлiк ұйымдарының қарамағындағы сақтау камералары жол жүру құжаттарының болуына қарамастан жолаушылардың және өзге де азаматтардың заттарын сақтауға қабылдауға мiндеттi. Көлiк ұйымдарының сақтау камераларында сақтау шарты жария шарт деп танылады (осы Кодекстiң 387- бабы).
2. Заттардың сақтау камерасына (автоматты камерадан басқа) қабылдануын растап жүк берушiге түбiртек немесе нөмiрлi жетон берiледi. Түбiртек немесе
жетон жоғалған жағдайда сақтау камерасына өткiзiлген заттар жүк берушiге бұл заттардың оған тиесiлi екендiгiне дәлелдер көрсетуi бойынша берiледi.
3. Сақтау камерасына өткiзiлген заттардың жоғалуынан, кем шығуынан немесе бүлiнуiнен жүк берушi шеккен залалдардың сомасы, егер заттарды сақтауға өткiзу кезiнде оған бағалау жүргiзiлген болса не егер тараптар өтелуге тиiстi залалдардың сомасына қатысты келiсiмге келген болса, жүк берушiге тәулiктiк мерзiмде төленедi.
4. Заттар сақтау камерасына арнайы ережелерде немесе тараптардың келiсiмiнде белгiленген шектердегi мерзiмге өткiзiледi. Көрсетiлген мерзiмде талап етiлмеген заттарды сақтау камерасы тағы да үш ай бойына сақтауға мiндеттi. Бұл мерзiм өткен соң талап етiлмеген заттар сатылуы, ал сатудан түскен сомалар осы Кодекстiң 781-бабына сәйкес бөлiнуi мүмкiн.
788-бап. Ұйымдардың киiмiлгiштерiнде сақтау
1. Егер затты сақтауға өткiзу кезiнде сақтағаны үшiн сыйақы беру айтылмаған болса, ұйымдардың киiмiлгiштерiнде сақтау тегiн болады деп ұйғарылады.
2. Сақтаушы заттың киiмiлгiште сақтауға қабылданғанын растап, жүк берушiге заттың сақтауға қабылданғандығын растайтын нөмiрлi жетон немесе басқа да таңба бередi.
3. Киiмiлгiшке өткiзiлген зат жетонды көрсеткен адамға берiледi. Бұл ретте сақтаушы жетонды көрсетушiнiң затты алуға өкiлеттiгiн тексеруге мiндеттi емес. Алайда сақтаушы жетонның оны көрсеткен адамға тиесiлi екендiгiне күмән келтiрсе, затты жетон көрсетушiге қайтаруды тоқтата тұруға құқылы.
4. Сақтаушы жүк берушi жетонды жоғалтып алғанда да киiмiлгiштен затты беруге құқылы, бiрақ оның киiмiлгiшке зат өткiзгендiгi фактiсi немесе оның жүк берушiнiкi екендiгi күмән тудырмауы немесе жүк өткiзушi оны дәлелдеуi керек.
789-бап. Қонақүйде сақтау
1. Қонақүй сақтаушы ретiнде, онда тұратын адамның қонақүйге енгізген ақшасын, өзге де валюталық құндылықтары мен бағалы қағаздарын қоспағанда, жоғалу мен бүлiну дүлей күштiң, заттың өз ерекшелiктерi салдарынан не тұратын адамның өзiнiң, оның қасында жүргендердiң немесе оған келушiлердiң кiнәсiнен болған жағдайлардан басқа кезде, бұл туралы ерекше келiсiм жасамай-ақ, заттың жоғалғаны немесе бүлiнгенi үшiн жауап береді.
2. Қонақүй ақшаның, өзге де валюталық құндылықтар мен бағалы қағаздардың жоғалғаны үшiн олар сақтауға қабылданған жағдайда ғана жауап бередi.
3. Қонақүйде тұратын адам өз затының жоғалғанын немесе бүлiнгенiн байқаған бойда бұл туралы дереу қонақүй әкiмшiлiгiне мәлiмдеуге мiндеттi. Бұлай жасамаған жағдайда қонақүй заттың сақталмағаны үшiн жауапкершiлiктен босатылады.
4. Қонақүй мұндай жауапкершiлiктi өзiне алмайтындығы туралы хабарлама бергенмен, онда тұратындардың заттарын сақтау жөнiндегi жауапкершiлiктен босатылмайды.
5. Осы баптың ережелерi мейманханаларға, демалыс үйлерiне, санаторийлерге, жатақханаларға және осы сияқты ұйымдарға, сондай-ақ ұйымға келушi азаматтардың сыртқы киiмдерiн, бас киімдерiн және өзге де заттарын сақтау үшiн арнайы орын бөлінген ұйымдарға қатыста да қолданылады.
790-бап. Даулы заттарды сақтау (секвестр)
1. Секвестр туралы шарт бойынша затқа деген құқық жөнiнде араларында дау туған екi немесе бiрнеше адам даулы затты даудың шешiлуi бойынша соттың шешiмi не дауласып жүрген барлық адамның келiсуi (шарттық секвестр) бойынша бұл зат кiмге берiлсе, соған қайтаруды мiндетiне алатын үшiншi адамға бередi.
2. Даулы зат соттың шешiмi бойынша секвестр тәртiбiмен сақтауға берiлуi мүмкiн (сот секвестрi).
Сот секвестрi бойынша сақтаушы сот тағайындаған адам да, дауласушы жақтардың өзара келiсуi бойынша белгiленген адам да болуы мүмкiн. Екi жағдайда да, егер заң актiлерiнде өзгеше көзделмесе, сақтаушының келiсiмi талап етiледi.
3. Секвестр тәртiбiмен сақтауға қозғалатын да, қозғалмайтын да заттар берiлуi мүмкiн.
Параграф 3. Тауар қоймасында сақтау
791-бап. Тауар қоймасы
Тауарлар сақтауды жүзеге асыратын және кәсiпкерлiк қызмет ретiнде сақтауға байланысты қызметтер көрсететiн коммерциялық ұйымдар тауар қоймасы деп танылады.
792-бап. Ортақ пайдаланылатын тауар қоймасы
1. Егер заң актiлерiне сәйкес шектеулi адамдар тобынан тауарлар қабылдайтын қоймалар қатарына жатқызылмаған болса, тауар қоймасы ортақ пайдаланылатын қойма деп танылады.
2. Ортақ пайдаланылатын тауар қоймасымен жасалатын қоймада сақтау шарты жария шарт деп танылады (осы Кодекстiң 387-бабы).
793-бап. Тауар қоймасының мiндеттерi
1. Тауар қоймасы стандарттарда, техникалық талаптарда, технологиялық нұсқаулықтарда, сақтау жөнiндегi нұсқаулықтарда, тауарлардың жекелеген түрлерiн сақтау ережелерiнде, қойма үшiн мiндеттi өзге де арнаулы нормативтiк құжаттарда белгiленген сақтау талаптарын (режимiн) сақтауға мiндеттi.
2. Тауар қоймасы сақтауға қабылдау кезiнде өз есебінен тауарларға тексеру жүргiзуге мiндеттi.
3. Тауар қоймасы, тауар иесiне тауарларды немесе олардың үлгiлерiн тексеру, егер сақтау иесiздендiре отырып жүзеге асырылатын болса, байқап көру және тауарлардың сақталуын қамтамасыз ету үшiн қажеттi шаралар қабылдауға мүмкiндiк беруге мiндеттi.
4. Тауарлардың сақталуын қамтамасыз ету үшiн сақтау жағдайын дереу өзгерту қажет болған жағдайда тауар қоймасы талап етiлген шұғыл шараларды өз бетiнше қабылдауға құқылы. Ол тауар иесiне қабылданған шаралар туралы хабарлауға мiндеттi.
5. Тауардың бүлiнуi байқалған жағдайда қойма дереу акт жасауға және тауар иесiн оның тауар қоймасына мәлiмдеген мекен-жайы бойынша хабардар етуге мiндеттi.
794-бап. Тауар иесiнiң тауар қоймасына қоятын талаптары
Егер шартта өзгеше көзделмесе, тауар иесi қоймадан тауар алу кезiнде дұрыс сақталмаудың салдарынан тауардың жоғалғаны, кем шыққаны немесе бүлiнгенi туралы, ал көзге байқалмайтын бүлiнулер туралы - оларды табу үшiн қажет әдеттегi мерзiм iшiнде тауар қоймасына мәлiмдеуге мiндеттi. Егер тауардың бүлiнгенi және кем шыққаны туралы тиiстi мерзiмде мәлiмденбеген болса, бұл залалдар оның қасақана пиғылынан немесе өрескел абайсыздығынан келтiрiлген жағдайларды қоспағанда, тауар қоймасы залалдар үшiн жауапты болмайды.
795-бап. Тауар қоймасының сақтау жөнiндегi шығындарының орнын толтыру
Қойманың жүк берушiнiң мүдделерiнде жүзеге асырылған (тауарларды сақтандыру, тиеу-түсiру жұмыстары, кеден баждарын төлеу және т.б.) қосымша операциялар бойынша, шартта көзделген немесе заң актiлерiнде көзделген шығындар ставкаларының орнын толтыруға құқығы бар. Бұл құқық сақталатын тауарды қойманың ұстап қалу құқығымен қамтамасыз етiледi.
796-бап. Тауар қоймасының сақтау шартынан бас тартуы
Егер жүк берушi елеулi зиян келтiруге қауiп төндiретiн тауарлардың қатерлi сипатын жасырса, тауар қоймасы сақтау шартын орындаудан бас тартуға құқылы .
797-бап. Қойма құжаттары
1. Тауар қоймалары тауарлардың сақтауға қабылданғандығын растап мынадай қойма құжаттарын:
1) жай қойма куәлiгiн; 2) қос қойма куәлiгiн беруi мүмкiн.
1-1. Қазақстан Республикасының заңнамалық актiлерiнде көзделген жағдайларда тауар қоймалары тауарлардың иесiздендiрiлiп сақтауға қабылданғанын растайтын қос немесе жай қойма куәлiгiн беруге мiндеттi.
2. Қос қойма куәлiгi, оның әр бөлiгi және жай қойма куәлiгi бағалы қағаздар болып табылады.
3. Қос және жай қойма куәлiгi кепiл нысанасы бола алады. Ескерту. 797-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12
. № 225 Заңымен.
798-бап. Жай қойма куәлiгi
1. Жай қойма куәлiгi ұсынушының атына берiледi. 2. Жай қойма куәлiгiнде осы Кодекстiң 799-бабының 2-тармағының 2), 3), 5)-
10) тармақшаларында көзделген мәлiметтер, сондай-ақ оның ұсынушыға берiлгендiгi көрсетiлуге тиiс.
799-бап. Қос қойма куәлiгi
1. Қос қойма куәлiгi мазмұны бойынша бiрдей және қажет болған жағдайда бiреуiн басқасынан айыруға болатын қойма куәлiгiнен және кепiлдiк куәлiктен ( варранттан) тұрады.
2. Қос қойма куәлiгiнiң әр бөлiгiнде:
1) қос қойма куәлiгiнiң тиiстi бөлiгiнiң атауы; 2) тауарды сақтауға қабылдаған қойманың атауы мен мекен-жайы; 3) қойма тiзiлiмi бойынша қойма куәлiгiнiң ағымдағы нөмiрi; 4) сақтауға тауар қабылданған ұйымның атауы немесе азаматтың аты-жөнi,
сондай-ақ тауар иесiнiң орналасқан жерi (тұрғылықты жерi); 5) тауардың атауы мен мөлшерi, тауарларға арналған орындардың саны;
6) егер Қазақстан Республикасының заңнамалық актiлерiнде өзгеше белгiленбесе, қабылданған тауардың сомасы;
7) сақтауға алынған тауардың, егер бұлай белгiленетiн болса, сақталу мерзiмi; 8) сақтауға ақы төлеудiң тарифтерi мен тәртiбі; 9) қойма куәлiгiнiң берiлген күнi; 10) уәкiлеттi адамның қолтаңбасы және тауар қоймасының мөрi (ол болған кезде) көрсетiлуге тиiс.
Қазақстан Республикасының заңнамалық актiлерiнде қос қойма куәлiгiнiң нысаны мен мазмұнына қойылатын қосымша талаптар белгiленуi мүмкiн.
Ескерту. 799-бапқа өзгерту енгізілді - ҚР 2007.01.12 № 225; № 269-V ( 01.01.2015 бастап қолданысқа енгізіледі) Заңдарымен.
800-бап. Қос қойма куәлiгiн ұстаушының тауарға құқықтары
1. Қос қойма куәлiгiн ұстаушының қоймада сақтаулы тауарға толық көлемде билiк етуге құқығы бар.
2. Кепiл куәлiгiнен бөлiп алынған қойма куәлiгiн ұстаушы тауарға билiк етуге құқылы, бiрақ оны кепiл куәлiгi бойынша берiлген кредиттi өтегенге дейiн қоймадан ала алмайды. Қойма куәлiгiн ұстаушы тапсыру жазбаларын ( индоссамент) жасау және құжаттың өзiн беру жолымен, бiрақ тауардың орнын ауыстырмай, қоймаға қойылған тауарға меншiк құқығын басқаға беруді жүзеге асыра алады.
3. Кепiл куәлiгi бөлiп алынбаған қойма куәлiгiн индоссамент бойынша алған сатып алушы кепiлден бос қойма тауарының иесiне айналады. Кепiл куәлiгiнсiз қойма куәлiгін алу кезiнде тауарға меншiк құқығы кепiл құқығымен жүктемеленген болып ұйғарылады. Кепiл талаптары туралы (тауарға кепiлдiк құқығын белгiлеудiң сомасы мен мерзiмi туралы) мәлiметтердi, мүдделi тұлғалар айқын көре алатын қойма тiзiлiмiнен алуға болады.
4. Кепiл куәлiгiн ұстаушының осы куәлiк бойынша берiлген қарыздың және сол бойынша сыйақының мөлшерiнде тауарға кепiл құқығы болады. Тауарға кепiл құқығын белгілеу кезiнде бұл туралы қойма куәлiгiне белгi жасалады.
5. Сатып алушы немесе сатушы кепiлмен қамтамасыз ететiн тиiстi соманы кепiл ұстаушыға (кредиторға) немесе тауар қоймасына енгiзе отырып, тауарды кепiлден босата алады, оны тауар қоймасы кепiл куәлiгiн заңды ұстаушыға беруге мiндеттi.
6. Кепiл куәлiгiн ұстаушы оның кепiлмен қамтамасыз етiлген талаптарын мерзiмiнде қанағаттандырмаған жағдайда заң актiлерiмен белгiленген тәртiппен оған кепiл куәлiгi бойынша берiлген тауарды сатуға және кепiл берушiнiң басқа да кредит берушiлерi алдындағы өз талаптарын артықшылықпен жабуға құқылы. Сатудан түскен сома жетпеген жағдайда кепiл куәлiгiн ұстаушы оның алынбаған бөлiгiн кепiл куәлiгiмен қамтамасыз етілген талаптарға ақы төлеу жөнінде бірге жауапты болатын барлық индоссанттардан өндiрiп алуы мүмкiн.
Ескерту. 800-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12 . N 225 Заңымен.
801-бап. Қойма және кепiл куәлiктерiн беру
Қойма куәлiгi мен кепiл куәлiгi беру жазбасы (индоссаменттер) бойынша бiрге немесе бөлек берiлуi мүмкiн.
802-бап. Қос қойма куәлiгi бойынша тауар беру
1. Тауар қоймасы қойма және кепiл куәлiктерiн (қос қойма куәлiгiн) ұстаушыға қоса алғандағы осы екi куәлiктiң орнына тауар бередi.
Кепiл куәлiгi жоқ, бiрақ ол бойынша қарыз сомасын енгiзген қойма куәлiгiн ұстаушыға тек тауар қойма куәлiгiне айырбастап және кепiл куәлiк бойынша барлық қарыз сомасының жарнасы талабымен берiледi.
2. Қойма және кепiл куәлiктерiн ұстаушы тауарды бөлiп-бөлiп берудi талап етуге құқылы. Бұл орайда бастапқы куәлiктердiң орнына оған қоймада қалған тауарларға жаңа куәлiктер берiледi.
3. Осы баптың талаптарына қарамастан кепiл куәлiгi жоқ және ол бойынша қарыз сомасын енгiзбеген қойма куәлiгiн ұстаушыға тауар берген тауар қоймасы кепiл куәлiгiн ұстаушының алдында ол бойынша барлық есептелетiн соманың төленуi үшiн жауапты болады.
40-тарау. Сақтандыру
803-бап. Сақтандыру шарты
1. Сақтандыру шарты бойынша бiр тарап (сақтанушы) сақтандыру сыйлықақысын төлеуге мiндеттенедi, ал екiншi тарап (сақтандырушы) сақтандыру жағдайы басталған кезде сақтанушыға немесе шартта белгiленген сома (сақтандыру сомасы) шегiнде өзiнiң пайдасына шарт жасалған өзге тұлғаға ( пайда алушыға) сақтандыру төлемiн төлеуге мiндеттенедi.
Қазақстан Республикасының заңнамалық актілерінде сақтандыру шартында көзделген тәртіппен және жағдайларда өзге де төлемдерді жүзеге асыру жағдайлары көзделуі мүмкін.
2. Сақтандыру сақтандыру шарты негiзiнде жүзеге асырылады. Ескерту. 803-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18
N 128 , 2006.07.05 N 164, 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз) Заңдарымен.
804-бап. Осы Кодекспен реттелетiн сақтандыру қатынастары
Сақтандырушылар мен сақтанушылар арасындағы қатынастар, сондай-ақ олардың сақтандыру шартын жасау және оны орындау процесi кезiнде туындайтын сақтандырылғандармен және пайда алушылармен қатынастары осы Кодекспен реттеледi.
805-бап. Сақтандыру нысандары
1. Сақтандыру нысандары: 1) мiндеттiлiк дәрежесi бойынша - ерiктi және мiндеттi; 2) сақтандыру объектiсi бойынша - жеке және мүлiктiк; 3) сақтандыру төлемiн жүзеге асыру негiздерi бойынша - жинақтаушы және
жинақтаушы емес болып табылады. 2. Сақтандыру қызметiн лицензиялау мақсатында заң актiлерiнде өзгеше
жiктеу көзделуi мүмкiн. Ескерту. 805-бап жаңа редакцияда – ҚР 2000.12.18. N 128 Заңымен.
806-бап. Мiндеттi және ерiктi сақтандыру 1. Міндетті сақтандыру: 1) түрлері, шарттары мен тәртібі Қазақстан Республикасының сақтандырудың
міндетті түрлерін реттейтін жекелеген заңнамалық актілерінде белгіленетін, заңнамалық актілердің талаптарына орай жүзеге асырылатын сақтандыру;
2) міндетті сақтандыру туралы талап, сақтандырудың түрлері мен ең төмен талаптары (оның ішінде сақтандыру объектісі, сақтандыру тәуекелдері және сақтандыру сомаларының ең төмен мөлшерлері) Қазақстан Республикасының заңнамалық актілерінде белгіленетін, ал сақтандырудың өзге де шарттары мен
тәртібі тараптардың келісімімен айқындалатын сақтандыру (жүктелген сақтандыру).
2. Азаматқа өз өмiрiн немесе денсаулығын сақтандыру мiндетiн Қазақстан Республикасының заңнамалық актілерімен де, шартпен де жүктеуге болмайды.
Мiндеттi сақтандыру сақтанушының есебiнен жүзеге асырылады. Түрлері, шарттары мен тәртібі Қазақстан Республикасының сақтандырудың
міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленетін міндетті сақтандыру экономикалық тұрғыдан негізді, көпшілікке ортақ және әлеуметтік-қоғамдық маңызды болған кезде енгізілуі мүмкін.
3. Сақтандыру міндеті Қазақстан Республикасының заңнамалық актісінен туындамай, шартқа негізделген жағдайларда, мұндай сақтандыру міндетті болып табылмайды және осы Кодекстің көзделген салдарға алып келмейді.808-бабында
4. Түрлері, шарттары мен тәртібі Қазақстан Республикасының сақтандырудың міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленген міндетті сақтандыру шартын жасасу кезінде сақтанушы Қазақстан Республикасының осы заңнамалық актісінде жазылған талаптарда сақтандырушымен шарт жасасуға міндетті.
Жүктелген сақтандыру кезiнде сақтандырушымен шарт Қазақстан Республикасының заңнамалық актілерінде белгіленген ең төмен талаптар сақтала отырып, тараптардың келісімінде айқындалған талаптармен жасалады.
5. Түрлері, шарттары мен тәртібі Қазақстан Республикасының сақтандырудың міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленген міндетті сақтандыру шарты сақтандырудың осы түрiн жүзеге асыруға арналған лицензиясы бар сақтандырушымен ғана жасалуы мүмкін. Түрлері, шарттары және тәртібі Қазақстан Республикасының сақтандырудың міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленген міндетті сақтандыру шартын жасасу сақтандырудың осы түрін жүзеге асыруға арналған лицензиясы бар сақтандырушы үшін міндетті болып табылады.
6. Ерікті сақтандыру – тараптардың ерік білдіруіне қарай жүзеге асырылатын сақтандыру.
Ерікті сақтандырудың түрлері, шарттары мен тәртібі тараптардың келісімімен айқындалады.
Ескерту. 806-бап жаңа редакцияда – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
807-бап. Сақтандыру объектiсi
1. Азаматтардың және заңды тұлғалардың, соның ішінде:
1) азаматтардың белгілі бір жасқа дейін немесе сақтандыру шартында белгіленген мерзімге дейін өмір сүруіне, өліміне, азаматтардың өмірінде белгілі бір оқиғалардың басталуына;
2) жазатайым жағдайлардың және өзге де оқиғалардың, аурулардың салдарынан азаматтардың өмірі мен денсаулығына зиян келтірілуіне;
3) мүлікті иеленуiне, пайдалануына және оған билiк етуiне; 4) басқа тұлғаларға, соның ішінде шартты (міндеттемелерді) бұзу салдарынан
келтірілген зиянды өтеу міндетіне байланысты кез келген мүліктік мүдделері мүліктік және жеке сақтандыру объектілері бола алады.
Мiндеттi сақтандыру бойынша сақтандыру объектiсi Қазақстан Республикасының заңнамалық актілерінде айқындалады.
2. Сақтанушының құқыққа қайшы мүліктік мүдделерi сақтандыруға жатпайды.
3. Осы баптың 2-тармағында көзделген мүліктік мүдделер объектiсi болатын не сақтандыру объектісі болмайтын сақтандыру шарттары маңызсыз болып табылады.
Ескерту. 807-бапқа өзгерістер енгізілді - ҚР 20.02.2006 N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.05.07. N 244 (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
808-бап. Мiндеттi сақтандыру туралы ережелердiң бұзылу зардабы
1. Заң актiлерiне сәйкес пайдасына мiндеттi сақтандыру жүзеге асырылуы тиiс болған адам, егер оның сақтандырылмағандығы белгiлi болса, осы мiндет жүктелген тұлғадан оны сот тәртiбiмен талап етуге құқылы.
2. Егер сақтандыру мiндетi жүктелген тұлға оны жүзеге асырмаса немесе сақтандыру шартын заң актiлерiнде көзделгенмен салыстырғанда сақтандырылғандардың жағдайын нашарлататындай жағдайда жасаған болса, бұл тұлға сақтандыру жағдайы басталған кезде дұрыс сақтандыру кезiнде сақтандыру төлемi қандай талаптарда жүзеге асырылатын болса, сақтандырылғандардың алдында сондай талаптарда жауапты болады.
3. Заң актiлерiмен сақтанушы болу мiндетi жүктелген тұлға осы Кодекстiң 806-бабының 5-тармағына сәйкес сақтандыруды жүзеге асыруға мiндеттi, алайда одан жалтаратын сақтандырушыны заң актiлерiнде көзделген талаптарда сақтандыру шартын жасауға мәжбүр етудi сот тәртiбiмен талап етуге құқылы.
4. Сақтанушы ретiнде оны жүзеге асыруға мiндеттi тұлғалардың, сондай-ақ сақтандырушы ретiнде iс-қимыл жасауға мiндеттi сақтандыру ұйымының сақтандырудан жалтаруы заң актiлерiнде көзделген жауаптылыққа әкеп соқтырады.
Ескерту. 808-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18 . N 128 Заңымен .
809-бап. Жеке және мүлiктiк сақтандыру
1. Азаматтың өмiрiн, денсаулығын, еңбекке қабiлеттiлiгiн және жеке басына байланысты өзге де мүліктік мүдделерiн сақтандыру жеке сақтандыруға жатады.
Жеке сақтандыру шарты бойынша сақтанушының өзi, сондай-ақ шартта аталған басқа (сақтандырылған) адам сақтандырылған болуы мүмкiн.
2. Мүлiктi және оған байланысты мүліктік мүдделердi сақтандыру мүлiктiк сақтандыруға жатады.
3. Мүлiктi сақтандыру кезiнде мүлiктiң жоғалуы (жойылуы) тәуекелi, жетiспеуi немесе бүлiнуi және осы Кодекстiң 115-бабында көзделген өзге де мүлiктiк игiлiктер мен құқықтар сақтандырылады.
4. Сақтанушының немесе пайда алушының сақтандырылған мүлiктi сақтап қалу мүддесi болмаған кезде мүлiктi сақтандыруға жасалған шартты сот жарамсыз деп тануы мүмкін.
5. Азаматтық-құқықтық жауаптылықты сақтандыру кезiнде, үшiншi бiр адамдардың өмiрiне, денсаулығына немесе мүлкiне зиян келтiрудiң салдарынан туындайтын мiндеттемелер бойынша жауапты болу, сондай-ақ шарттардан туындайтын мiндеттемелер бойынша жауапты болу тәуекелiн сақтандырады.
Ескерту. 809-бапқа өзгерістер енгізілді - ҚР 2006.02.20. N 128 Заңымен ( қолданысқа енгізілу тәртібін 2-баптан қараңыз); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
809-1-бап. Жинақтаушы сақтандыру
1. Сақтандыру жағдайы туған кезде, соның ішінде сақтандыру шартында белгіленген кезең не олардың қайсысының бұрын туындауына байланысты сақтандыру шартында көзделген өзге оқиға аяқталғанда сақтандыру төлемін жүзеге асыруды көздейтін сақтандыру жинақтаушы сақтандыру болып табылады .
2. Осы Кодекстің 3-тармағында көзделген белгілері бар817-бабының сақтандыру жағдайы басталған кезде ғана сақтандыру төлемін жүзеге асыру көзделетін сақтандыру жинақтаушы емес сақтандыру болып табылады.
3. Аннуитеттік сақтандыру шарты - сақтандырушыны шартта белгiленген мерзiм iшiнде пайда алушының пайдасына мерзiмдi төлемдер түрiнде сақтандыру төлемiн жүзеге асыруға мiндеттi ететiн сақтандыру шарты.
4. Жинақтаушы сақтандыру шарттары тек қана жеке сақтандыру бойынша жасалуы мүмкiн.
5. Аннуитеттік сақтандыру шарты жинақтаушы сақтандыру шарттарына жатады.
Ескерту. 809-1 баппен толықтырылды – ҚР 2000.12.18. N 128 Заңымен , өзгерту енгізілді - 2006.02.20. N 128 Заңымен (қолданысқа енгізілу тәртібін 2- баптан қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
810-812.
Ескерту. 810-812-баптар алып тасталынды – ҚР 2006.02.20. N 128 (Заңымен қолданысқа енгізілу тәртібін қараңыз).2-баптан
813-бап. Сақтанушы
1. Сақтанушы - сақтандырушымен сақтандыру шартын жасасқан тұлға. 2. Заңды тұлғалар мен азаматтар сақтанушылар бола алады.
3. Егер Қазақстан Республикасының сақтандырудың міндетті түрлерін реттейтін жекелеген заңнамалық актілерінде өзгеше белгіленбесе, сақтанушы сақтандырудың ерiктi де, мiндеттi де нысандары бойынша сақтандырушыны таңдап алуға ерiктi.
Ескерту. 813-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 Заңымен; 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
814-бап. Сақтандырушы
Сақтандырушы - сақтандыруды жүзеге асыратын, яғни сақтандыру жағдайы пайда болған кезде сақтанушыға немесе пайдасына шарт жасалған өзге тұлғаға ( пайда алушыға) шартта айқындалған соманың (сақтандыру сомасының) шегiнде сақтандыру төлемін жүргізуге мiндеттi тұлға.
Сақтандыру ұйымы ретiнде тiркелген және сақтандыру қызметiн жүзеге асыру құқығына лицензиясы бар заңды тұлға не Қазақстан Республикасының өзара сақтандыру туралы заңнамалық актiсiне сәйкес өзара сақтандыру қоғамы ғана сақтандырушы бола алады.
Ескерту. 814-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18 . N 128 , 2006.07.05. N 164 Заңдарымен.
815-бап. Сақтандырылған адам
1. Сақтандырылған адам - өзіне қатысты сақтандыру жүзеге асырылатын тұлға.
Егер шартта өзгеше көзделмесе, сақтанушы бiр мезгiлде сақтандырылған адам болып табылады.
2. Заңнамалық актілермен сақтанушыға үшiншi тұлғаны сақтандыруды жүзеге асыру мiндетi жүктелуi мүмкiн. Өз еркiмен сақтандыру кезiнде сақтанушы үшiншi тұлғаны сақтандыру шартында сақтандырылған адам ретінде айқындай алады. Бұл жағдайларда сақтандырылған адамның жеке басы және соған байланысты оның мүдделері (сақтандырылған адамды жеке сақтандыру) не сақтандырылған адамның мүлкі және мүліктік мүдделері (сақтандырылған адамның мүліктік сақтандырылуы) сақтандыру объектiсi болады.
Мүлiктi сақтандыру кезiнде сақтанушы болып табылмайтын сақтандырылған адам бұл мүлiктiң сақталуына мүдделi болуға тиiс.
3. Егер шарттың талаптары бойынша сақтанушы болып табылмайтын сақтандырылған адамға белгiлi бiр мiндеттер жүктелген болса, сақтанушы осы шартты жасасуға сақтандырылған адамның келісімін алуы тиіс.
Мiндеттi сақтандыру кезiнде, сондай-ақ топтастырылып иесіздендірілген сақтандыру кезінде, шарт жасасу үшін оның өзі сақтандырылған адам ретiнде көрiнетiн үшiншi адамның келiсiмi талап етiлмейдi.
Өз еркiмен сақтандыру кезiнде адамдардың оның жеке басын немесе мүлкiн сақтандыру жөнiндегi қарсылығы шарт жасасудың мүмкiн еместiгiне, ал егер ол жасалып қойған болса - шарттың бұзылуына әкеп соғады.
4. Сақтанушыға үшiншi тұлғаны сақтандыру мiндетi жүктелген жағдайда, аталған тұлға сақтанушыдан бұл мiндеттiң орындалуы туралы есеп талап етуге, ал заң актiлерiнде көзделген жағдайларда - оның сақтандырылған адам болып табылатындығын дәлелдейтiн құжатты алуға құқылы.
Сақтанушы үшiншi адамды сақтандыру жөнiндегi өз мiндетiн орындамаған немесе дұрыс орындамаған жағдайда, соңғысы осы Кодекстiң 808-бабының 1 және 2-тармақтарында көзделген шараларды қолдануға құқылы.
5. Кәмелетке толмаған азамат сақтандырылған болып табылатын жағдайда оның құқықтары осы Кодекстiң 22-24-баптарында көзделген тәртiппен iске асырылады.
6. Сақтандырылған адамның пайдасына шарт жасасу, сақтанушыны осы шарт бойынша мiндеттердi орындаудан босатпайды.
Үшiншi адамды сақтандыру сақтанушының есебiнен жүзеге асырылады. 7. Сақтандырылған адам шартқа сәйкес өзiне тиесiлi сақтандыру төлемiн
алудан бас тартқан жағдайда сақтандыру төлемiн алу құқығы сақтанушыға көшедi.
8. Сақтанушы болып табылмайтын, оған қатысты мұндай жағдайды көздемейтiн жеке басты сақтандыру шарты жасалған сақтандырылған адам қайтыс болған жағдайда, егер заң актiлерiнде немесе шартта сақтандырылған адамды ауыстыру көзделмесе, бұл шарт тоқтатылуға жатады.
Егер сақтандырылған адамның қайтыс болуы сақтандыру шартында көзделген сақтандыру жағдайы болса, бұл шарт онда көзделген талаптармен орындалады.
Сақтанушы болып табылмайтын, оған қатысты мүлiктiк сақтандыру шарты жасалған сақтандырылған адам қайтыс болған жағдайда, сақтандырылған адамның құқықтары мен мiндеттерi сақтанушының келiсуiмен, егер заң актiлерiнде немесе шартта өзгеше көзделмесе, сол мүлiктiң және сақтандырылған адамның мүлiктiк құқықтарының мұрагерлерiне ауысады.
Егер сақтанушы қайтыс болған сақтандырылған адамды ауыстыруға келiспесе не мұрагерлер оның сақтандыру шартынан туындайтын құқықтары мен мiндеттерiн қабылдауға келiспесе, бұл шарт тоқтатылуға жатады.
9. Үшiншi адамның (сақтандырылған адамның) пайдасына жасалған сақтандыру шартына осы Кодекстiң 391-бабының осы бап ережелерiне қайшы келмейтiн бөлiгiндегi ережелерi қолданылады.
Ескерту. 815-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18 . N 128 , 2007.05.07. N 244 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
816-бап. Пайда алушы
1. Пайда алушы - сақтандыру шартына немесе Қазақстан Республикасының заңнамалық актілеріне сәйкес сақтандыру төлемiн алушы болып табылатын тұлға .
Заңды тұлға да, азамат та пайда алушы бола алады. Пайда алушы жеке де, мүлiктiк те сақтандыру бойынша тағайындала алады. Түрлері, шарттары мен тәртібі Қазақстан Республикасының сақтандырудың
міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленетін міндетті сақтандыру кезінде пайда алушы – Қазақстан Республикасының осы заңнамалық актісімен, жүктелген сақтандыру кезінде Қазақстан Республикасының
заңнамалық актілерімен не тараптардың келісімімен айқындалады. Сақтандырудың ерікті түрлері бойынша пайда алушыны сақтанушы тағайындайды.
2. Егер Қазақстан Республикасының заңнамалық актілерінде немесе сақтандыру шартында өзгеше көзделмесе, сақтанушы пайда алушы болып табылады.
Егер сақтанушы сақтандырылған адам болып табылмаса, пайда алушы сақтандырылған адам болуы тиіс не ол сақтандырылған адамның жазбаша келiсiмi бойынша тағайындалады.
Егер пайда алушы сақтандыру шартында көрсетiлмесе, ол сақтандырылған адам деп ұйғарылады.
3. Алып тасталды - ҚР 20.02.2006 № 128 Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
4. Алып тасталды - ҚР 18.12.2000 № 128 Заңымен (жарияланған күнiнен бастап қолданысқа енгiзiледi).
5. Сақтандырылған адам бір мезгілде пайда алушы болып табылатын жағдайда соңғысына осы Кодекстiң 815-бабында көзделген ережелер қолданылады.
6. Сақтандырылған адам болып саналмайтын пайда алушы қайтыс болған жағдайда не ол пайда алушының құқықтарынан бас тартса, соңғысының құқығы сақтанушыға ауысады.
Сақтандырылған болып табылатын пайда алушы қайтыс болған жағдайда осы Кодекстiң 815-бабының 8-тармағында көзделген зардап туындайды.
7. Егер сақтандырылған адамның қайтыс болуы, сақтандыру шартында көзделген жағдай болып табылса, онда бұл сақтандырылған адам сақтанушы болмаған күнде де, болған күнде де, бірақ шартта пайда алушы көрсетiлмесе, сақтандырылған адамның мұрагерлерi пайда алушылар деп танылады.
8. Сақтандыру жағдайы басталған кезде пайда алушы тікелей сақтандырушыға сақтандыру шартында көзделген сақтандыру төлемiн төлеу туралы талап қоюға құқылы.
9. Пайда алушының пайдасына шарт жасасу сақтанушыны осы шарт бойынша мiндеттердi орындаудан босатпайды.
Ескерту. 816-бапқа өзгертулер енгізілді – ҚР 2000.12.18. N 128 Заңымен , 2006.02.20. N 128 Заңымен (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
817-бап. Сақтандыру мүддесі және сақтандыру жағдайы
Ескерту. 817-баптың тақырыбы жаңа редакцияда – ҚР 02.07.2018 (№ 166-VІ алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1. Сақтандыру шарты сақтандыру мүддесінің болуын көздеуге тиіс. 1-1. Сақтандыру мүддесі – жинақтаушы сақтандыру шарты бойынша көзделуі
мүмкін оқиғаларды қоспағанда, сақтанушының (сақтандырылушының, пайда алушының) тәуекелдерді болғызбаудағы және сақтандыру жағдайының басталуына жол бермеудегі мүліктік мүддесі.
1-2. Сақтандыру жағдайы – басталған кезде сақтандыру шартында сақтандыру төлемін жүзеге асыру көзделетін оқиға.
2. Мiндеттi сақтандыру бойынша сақтандыру жағдайының түрлерi Қазақстан Республикасының заңнамалық актілерінде, ал өз еркiмен сақтандыру бойынша - тараптардың келiсiмiмен белгiленедi.
3. Сақтандыру жағдайы ретінде қарастырылатын оқиғада төменде санамаланған белгілердің барлығы (жинақтаушы сақтандыру шарты бойынша көзделуі мүмкін оқиғаларды қоспағанда) болуға тиіс:
оқиғаның басталу ықтималдығы мен кездейсоқтығы; оқиғаның басталуының нақты уақытына немесе орнына, сондай-ақ оқиғаның
басталу салдарынан болған залалдардың мөлшеріне қатысты болжанбайтындығы ;
оқиға шарттың қолданылуы шегінде сөзсіз және объективті түрде болуға тиіс, бұлар жөнінде тараптар немесе ең болмағанда, сақтанушы көрінеу білді немесе алдын ала хабардар болды деген қауіптің болмауы;
оқиғаның басталуында сақтанушының (сақтандырылушының, пайда алушының) мүліктік мүддесі үшін теріс, экономикалық тұрғыдан тиімсіз салдардың болуы;
оқиғаның басталуы сақтанушының (сақтандырылушының, пайда алушының) ерік-қалауымен және (немесе) пиғылымен байланысты болмауы және пайда алу және (немесе) ұтыс алу (алыпсатарлық тәуекел) мақсатын көздемеуі.
4. Сақтандыру жағдайының басталғандығын, сондай-ақ ол келтiрген зияндарды дәлелдеу сақтанушының (пайда алушының, сақтандырылушының) мiндетiне жатады.
Ескерту. 817-бапқа өзгерту енгізілді – ҚР 2000.12.18 N 128, 2010.07.15 № 338- IV (қолданысқа енгізілу тәртібін 2-б. қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
818-бап. Сақтандыру сыйлықақылары
1. Сақтандыру сыйлықақысы – сақтанушы сақтандырушыға соңғысы сақтандыру шартында айқындалған мөлшерде сақтанушыға (пайда алушыға) сақтандыру төлемiн жүргiзу мiндеттемелерiн қабылдағаны үшiн төлеуге мiндеттi ақша сомасы.
Инвестициялау мақсаттары үшін сақтанушылардан алынған сақтандыру сыйлықақыларының бір бөлігін және сақтанушының инвестицияларға қатысу талабы көзделетін сақтандыру шарттары бойынша оларды инвестициялаудан алынған кірістерді (шеккен залалдарды), сондай-ақ осы Кодекстің 845-1- бабының көзделген жағдайды қоспағанда, сақтандырушы3-тармағында сақтанушыдан алған сақтандыру сыйлықақылары оған меншік құқығымен тиесілі болады.
2. Сақтандыру сыйлықақыларының мөлшерлері шартта белгіленеді. Міндетті сақтандыру кезінде сақтандыру сыйлықақыларының мөлшерлері Қазақстан Республикасының сақтандырудың міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленеді.
Сақтандыру сыйлықақыларын төлеу тәртібі мен мерзімдері шартта айқындалады. Міндетті сақтандыру кезінде олар Қазақстан Республикасының заңнамалық актілерінде айқындалуы мүмкін.
3. Тараптар сақтандыру шарты бойынша төленуге жататын сақтандыру сыйлықақыларының мөлшерiн айқындау кезiнде, сақтандыру объектiсi мен сақтандыру тәуекелiнiң сипатын ескере отырып, сақтандыру сомасы өлшемiнен өндiрiлетiн сақтандыру сыйлықақысының ставкасын белгiлейтiн сақтандырушы әзiрлеген сақтандыру тарифiн қолдана алады.
4. Шартта сақтандыру сыйлықақысын мерзiмдiк сақтандыру жарналары түрiнде бөлiп-бөлiп төлеу көзделуi мүмкiн.
5. Егер сақтандыру шартында сақтандыру сыйлықақысын бөлiп-бөлiп төлеу көзделген болса, шартты мерзiмiнен бұрын бұзуды қоса алғанда, шартта кезекті сақтандыру жарналарын белгіленген уақытта төлемеудiң зардабы айқындалуы мүмкiн.
6. Егер сақтандыру жағдайы енгiзу мерзiмi өтiп кеткен белгiлi бiр сақтандыру жарнасын төлеуден бұрын басталған болса, сақтандырушы сақтандыру төлемiнің мөлшерiн айқындау кезiнде мерзiмi өтiп кеткен сақтандыру жарнасының сомасын есепке алуға құқылы.
Ескерту. 818-бапқа өзгерістер енгізілді - ҚР 2000.12.18. N 128 , 2006.02.20. N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.05.07. N 244 ( қолданысқа енгізілу тәртібін 2-баптан қараңыз); 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
819-бап. Сақтандыру сомасы
1. Сақтандыру сомасы - сақтандыру объектiлерi сақтандырылған адам және сақтандыру жағдайы басталған кездегі сақтандырушы жауаптылығының шектi көлемiн бiлдiретiн ақша сомасы.
2. Сақтандыру сомаларының мөлшерлері (аннуитеттік сақтандыру шарттары мен сақтанушының инвестицияларға қатысу талабы көзделетін сақтандыру шарттарын қоспағанда) шартта белгіленеді. Міндетті сақтандыру кезінде олар Қазақстан Республикасының заңнамалық актілерінде белгіленген мөлшерлерден кем болмайды.
3. Мүлiктi сақтандыру кезiнде сақтандыру сомасы шарт жасалған кездегi оның нақты құнынан (сақтандыру құнынан) артық бола алмайды.
4. Сақтанушы өзін әдейі жаңылыстырғанын сақтандырушы дәлелдеген жағдайларды қоспағанда, тараптар сақтандыру шартында айқындалған мүлiк құнына дауласа алмайды. Егер сақтандыру шартында айқындалған сақтандыру сомасы сақтандыру құнынан асып түссе, сақтандыру шартын сақтандыру сомасының шарт жасалған кездегi сақтандыру құнынан асып түскен бөлiгiнде сот жарамсыз деп тануы мүмкін.
5. алып тасталды - 2006.02.20. N 128 Заңымен . Ескерту. 819-бапқа өзгерістер енгізілді - ҚР 2000.12.18. N 128 Заңымен ,
2006.02.20. N 128 Заңымен (қолданысқа енгізілу тәртібін 2-баптан қараңыз) ); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
820-бап. Сақтандыру төлемi
1. Сақтандыру төлемi - сақтандырушы сақтанушыға (пайда алушыға) сақтандыру жағдайы туған кезде не жинақтаушы сақтандыру шартында белгiленген мерзiм туған кезде сақтандыру сомасы шегiнде төлейтiн ақша сомасы.
Аннуитеттік сақтандыру шарттары бойынша сақтандыру төлемдерін қоспағанда, сақтандыру төлемі біржолғы төлеммен жүзеге асырылады.
2. Сақтандыру төлемінің мөлшерлерін айқындау тәртібі шартта белгіленеді. Міндетті сақтандыру бойынша сақтандыру төлемінің мөлшерлерін айқындау тәртібі Қазақстан Республикасының сақтандырудың міндетті түрін реттейтін жекелеген заңнамалық актісінде белгіленеді.
3. Сақтандыру төлемдерiн жүзеге асыру тәртібі мен мерзiмдерi шартта айқындалады.
Міндетті сақтандыру бойынша олар Қазақстан Республикасының заңнамалық актілерінде айқындалуы мүмкін.
4. Мүлiктi және азаматтық-құқықтық жауаптылықты сақтандыру бойынша сақтандыру төлемi сақтандыру жағдайының басталуы нәтижесінде сақтанушыға (сақтандырылған адамға) келтiрiлген нақты зиянның мөлшерiнен аспауы керек.
5. Жеке сақтандыру бойынша сақтандыру төлемi сақтанушыға ( сақтандырылған адамға) әлеуметтiк қамсыздандыру бойынша, сақтандырудың басқа шарттары бойынша оған тиесілi сомаларға қарамастан және зиянның орнын толтыру тәртiбiмен жүзеге асырылады.
6. Мүлiктiк сақтандыру шартының талаптарымен сақтандыру өтемiнiң сомасы шегiнде сақтандыру өтемiн зиянның заттай нысандағы өтемiмен ауыстыру көзделуi мүмкiн.
7. Сақтандыру төлемін жүзеге асыру кезiнде сақтандырушы өзiне сақтанушыдан тиесiлi болатын сақтандыру сыйлықақыларына не сақтандыру жарналарына есеп жүргiзуге құқылы.
8. Егер шартта немесе Қазақстан Республикасының заңнамалық актілерінде жауаптылықтың бұдан жоғары мөлшерi көзделмесе, сақтандыру төлемiн уақытында жүзеге асырмағаны үшiн сақтандырушы осы Кодекстiң 353-бабына сәйкес жауап бередi.
Ескерту. 820-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 Заңымен, 2006.02.20. N 128 Заңымен (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
821-бап. Қос сақтандыру
1. Қос (көпше) сақтандыру - белгiлi бiр объектiнi бiрнеше сақтандырушыда әрқайсысымен дербес шарт бойынша сақтандыру.
2. Мүлiктi қос сақтандыру кезiнде әрбiр сақтандырушы сақтанушының алдында онымен жасалған шарттың шегiнде жауапты болады, алайда сақтанушының барлық сақтандырушылардан алған сақтандыру төлемдерiнiң жалпы сомасы нақты зияннан аспауы тиiс.
Бұл ретте сақтанушы кез келген сақтандырушыдан онымен жасалған шартта көзделген сақтандыру сомасының көлемiнде сақтандыру төлемiн алуға құқылы. Егер алынған сақтандыру төлемi нақты зиянды жаппайтын болса, сақтанушы жетпеген соманы басқа сақтандырушыдан алуға құқылы.
Келтiрiлген зиянды басқа сақтандырушылар өтегендiктен сақтандыру төлемiнен толық немесе iшiнара босатылған сақтандырушы сақтанушыға шыққан шығындарды шегере отырып, сақтандыру сыйлықақыларының тиiстi бөлiгiн қайтаруға мiндеттi.
3. Жеке өзiн қос (көпше) сақтандыру кезiнде әрбiр сақтандырушы өзiнiң сақтанушы алдындағы сақтандыру мiндеттемелерiн, оларды басқа сақтандырушылардың орындағандарына қарамастан, өз бетiнше атқарады.
Ескерту. 821-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18 . N 128 Заңымен .
822-бап. Топтық сақтандыру
1. Топтық сақтандыру кезiнде бiр сақтандыру шартымен бiр мезгiлде өздерi пайда алушы болып табылатын бiрнеше сақтандырылған адамдар қамтылады.
2. Топтық сақтандыру адамдардың белгiлi бiр санаттарын қамтитын жеке де, мүлiктiк те, дербестендiрiлген де, иесiздендiрiлген де болуы мүмкiн.
Иесiздендiрiлген сақтандыру кезiнде сақтандырылған адамдар тобы сақтандыру шартында бұл оның әрбiр сақтандырылған адамға қатысты зардабын және оған тиесілі сақтандыру төлемiнің төлеу мөлшерiн дараландыру үшiн қажеттi шамада нақтылануға тиiс.
3. Жұмыс берушiлердiң өз қызметкерлерiн ұжымдық сақтандыруы тек жеке сақтандыру түрiнде ғана болуы мүмкiн.
Ескерту. 822-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 Заңымен. 823-бап. Ортақ сақтандыру және бірлескен қайта сақтандыру
1. Сақтандыру объектiсi бірлескен қызмет (ортақ сақтандыру) туралы шарт негізінде жай серіктестік (сақтандыру пулын) құру арқылы бiрнеше сақтандырушымен бірлесіп бір ортақ сақтандыру шарты бойынша сақтандырылуы мүмкін.
Қайта сақтандыру объектісі бірлескен қызмет (бірлескен қайта сақтандыру) туралы шарт негізінде жай серіктестік (қайта сақтандыру пулын) құру арқылы бiрнеше қайта сақтандырушымен бірлесіп бір бірлескен қайта сақтандыру шарты бойынша сақтандырылуы мүмкін.
Бұл ретте ортақ сақтандыру (бірлескен қайта сақтандыру) шартында әрбір сақтандырушының (қайта сақтандырушының) келісілген үлестердегі құқықтары мен міндеттерін айқындайтын талаптар қамтылуға тиіс.
Егер ортақ сақтандыру (бірлескен қайта сақтандыру) шартында өзгеше айқындалмаса, сақтандыру (қайта сақтандыру) пулына қатысушылар сақтанушының (пайда алушының) немесе қайта сақтанушының алдында
сақтандыру (қайта сақтандыру) пулының міндеттемелері бойынша, оның ішінде сақтандыру төлемін жүзеге асыру үшін ортақтасып жауап береді.
2. Сақтандырушылар (қайта сақтандырушылар) арасында тиісті келісім болған кезде олардың бірі сақтанушымен (қайта сақтанушымен) өзара қарым-қатынастарда барлық сақтандырушылардың (қайта сақтандырушылардың ) атынан өкілдік ете алады.
3. Сақтандыру (қайта сақтандыру) пулы қатысушыларының ортақ істеріне басшылық етуді және оларды жүргізуді сақтандыру (қайта сақтандыру) пулына қатысушылармен тиісті келісім болған кезде сақтандыру брокері жүзеге асыруы мүмкін.
Ескерту. 823-бап жаңа редакцияда – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
824-бап. Қайта сақтандыру
1. Сақтандырушы сақтанушы алдындағы өз мiндеттемелерiнiң барлығын немесе бiр бөлiгiн орындау тәуекелін жабуды басқа сақтандырушыда (қайта сақтандырушыда) қайта сақтандыру арқылы қамтамасыз етуге құқылы.
Қайта сақтанушының сақтандырушы (қайта сақтандырушы) ретінде жасасқан сақтандыру (қайта сақтандыру) шарты бойынша сақтандыру төлемін жүзеге асыру тәуекеліне байланысты мүліктік мүдделері қайта сақтандыру объектілері болуы мүмкін.
Қайта сақтанушының құқыққа қайшы мүліктік мүдделері қайта сақтандыруға жатпайды.
Қайта сақтанушының құқыққа қайшы мүліктік мүдделері объектісі болатын не қайта сақтандыру объектісі болмайтын қайта сақтандыру шарттары маңызсыз болып табылады.
2. Қайта сақтандырушымен қайта сақтандыру (қайта сақтанушы) шартын жасасқан сақтандырушы онымен жасаған сақтандыру шартына сәйкес сақтанушының алдында толық көлемде жауапты болып қалады.
3. Қайта сақтандыру талаптары Қазақстан Республикасының заңнамалық актiлерiнде және қайта сақтанушы мен қайта сақтандырушы арасындағы қайта сақтандыру шартында айқындалады.
Қайта сақтандыру шарты осы Кодексте сақтандыру шартына қойылатын талаптарға сай болуға тиiс. Исламдық қайта сақтандыру шарты осы Кодексте исламдық сақтандыру шартына қойылатын талаптарға сай болуға тиiс. Бұл ретте,
негiзгi сақтандыру шарты (исламдық сақтандыру шарты) бойынша сақтандырушы қайта сақтандыру шартында (исламдық қайта сақтандыру шартында) сақтанушы болып есептеледі.
4. Алып тасталды – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
5. Екi немесе бiрнеше қайта сақтандыру шарттарын біртіндеп жасауға жол берiледi.
Ескерту. 824-бапқа өзгерістер енгізілді - ҚР 10.07.2003 жылғы N 483 ( 01.01.2004 бастап күшіне енеді), 2006.02.20. N 128 Заңымен (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен. 825-бап. Сақтандыру шартының нысаны
1. Сақтандыру шарты: 1) тараптардың сақтандыру шартын жасауы;
2) сақтанушының Қазақстан Республикасының заңнамалық актілерінде көзделген сақтандырудың үлгілік талаптарына не сақтандырушы біржақты тәртіппен әзірлеген сақтандыру қағидаларына қосылуы (қосылу шарты) және сақтандырушының сақтанушыға сақтандыру полисiн ресімдеуi арқылы жазбаша нысанда жасалады.
2. Міндетті сақтандыру бойынша шарттың нысаны – Қазақстан Республикасының сақтандырудың міндетті түрлерін реттейтін жекелеген заңнамалық актілерінде, жүктелген сақтандыру бойынша Қазақстан Республикасының заңнамалық актілерінде көзделген ең төмен талаптар сақтала отырып тараптардың келісімімен белгіленеді, ал ерікті сақтандыру бойынша сақтандырушы белгілейді не тараптардың келісімімен белгіленеді.
Сақтандырушы сақтандыру шартын жасасу кезінде сақтандырудың үлгілік талаптарына немесе қағидаларына сәйкес сақтандыру түрлері бойынша әзірленген шарттарды қолдануға құқылы.
3. Сақтандыру шартының жазбаша нысанын сақтамау оның маңызсыз болуына алып келеді.
Ескерту. 825-бап жаңа редакцияда – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
825-1-бап. Сақтандыру ережелерi
1. Сақтандырушы сақтандыру ережелерін сақтандырудың әрбір түрі бойынша әзірлейді және олар осы баптың талаптарына сәйкес келуге тиіс.
2. Сақтандыру ережелерiнде: 1) сақтандыру объектiлерiнiң тiзбесi; 2) сақтандыру сомасын анықтау тәртiбi; 3) сақтандыру жағдайларының тізбесі;; 4) сақтандыру жағдайларынан алып тастау және сақтандыруды шектеу; 5) сақтандыру шартының қолданылу мерзiмi мен орны; 6) сақтандыру шартын жасасу тәртiбi; 7) тараптардың құқықтары мен мiндеттерi; 8) сақтанушының сақтандыру жағдайы туған кездегi iс-әрекетi; 9) сақтандыру жағдайының туғандығын және шығын мөлшерiн растайтын
құжаттар тiзбесi; 10) сақтандыру төлемiн жүзеге асырудың тәртiбi мен шарттары;
10-1) сақтанушыға немесе сақтандырылушыға сақтандыру төлемiн жүзеге асыруға қажетті жетіспейтін құжаттар туралы хабарлау мерзімі;
11) сақтандыру төлемi немесе сақтандыру төлемiн жасаудан бас тарту туралы шешiмдi қабылдаудың мерзiмi;
12) сақтандыру шартын тоқтату талаптары; 13) дауларды шешу тәртібі, оның ішінде міндетті сақтандыру бойынша
дауларды реттеу ерекшеліктері; 14) алынып тасталды; 15) қосымша талаптар болуға тиіс. 3. алынып тасталды. 4. Сақтанушы мен сақтандырушы арасындағы келісім бойынша сақтандыру
қағидаларының негiзiнде сақтандыру қағидаларының жекелеген ережелерін өзгерту, алып тастау, сондай-ақ сақтандыру шартын жасасу кезінде айқындалатын қосымша талаптар көзделетін сақтандыру шарттары жасалуы мүмкiн.
4-1. Сақтандыру қағидаларында қамтылатын және сақтандыру шартының мәтініне енгізілмеген талаптар, егер шартта осындай қағидаларды қолдану тікелей көрсетілсе және қағидалар шартта жазылса не оған қоса берілсе, тараптар үшін міндетті. Соңғы жағдайда шарт жасасу кезінде сақтанушыға сақтандыру қағидалары беруді тараптар шартта куәландыруға тиіс.
5. Алынып тасталды - ҚР 2009.12.30 № 234-IV (қолданысқа енгізілу тәртібін 2 -б. қараңыз) Заңымен.
Ескерту. Кодекс 825-1-баппен толықтырылды - ҚР 2000.12.18 N 128, өзгертулер енгізілді - 2003.07.10 N 483 (2004 жылғы 1 қаңтардан бастап күшіне енеді), 2006.02.20 N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз),
2009.12.30 № 234-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз) ; 02.07.2018 № 166-VІ ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
826-бап. Сақтандыру шартының мазмұны
1. Сақтандыру шартында мыналар болуы тиiс: 1) сақтандырушының атауы, орналасқан жері және банктік реквизиттерi; 2) сақтанушының (егер ол жеке адам болса) тегi, аты, әкесiнiң аты (егер ол
жеке басын куәландыратын құжатта көрсетілсе) және тұрған жерi немесе (егер ол заңды тұлға болса) оның атауы, орналасқан жерi және банктiк реквизиттерi;
2-1) сақтандыру агентінің (егер ол Қазақстан Республикасының резиденті – жеке тұлға болып табылса) тегі, аты, әкесінің аты (егер ол жеке басын куәландыратын құжатта көрсетілсе), байланыс телефонының нөмірі және жеке сәйкестендіру нөмірі немесе сақтандыру агентінің (егер ол Қазақстан Республикасының резиденті – заңды тұлға болып табылса) атауы, орналасқан жері, байланыс телефонының нөмірі және бизнес-сәйкестендіру нөмірі;
3) сақтандыру объектiсiн көрсету; 4) сақтандыру жағдайын көрсету;
5) сақтандыру сомасының мөлшерлері (аннуитеттік сақтандыру шарттары мен сақтанушының инвестицияларға қатысу талабы көзделетін сақтандыру шарттарын қоспағанда), сақтандыру төлемін жүзеге асыру тәртібі мен мерзімдері ;
6) сақтандыру сыйлықақысының мөлшерi, оларды төлеудiң тәртiбi мен мерзiмдерi;
6-1) сақтандырушының исламдық сақтандыру қорын басқарғаны үшін сыйақы мөлшері, оны төлеу шарттары мен тәртібі (исламдық сақтандыру шарты жасалған кезде);
6-2) сақтандыру агентіне тиесілі комиссиялық сыйақының бар немесе жоқ екендігі туралы нұсқау;
7) шарттың жасалу күнi және қолданылу мерзiмi; 8) егер олар сақтандыру қатынасына қатысушылар болса, сақтандырылған
адам мен пайда алушы туралы көрсету; 9) шарттың (сақтандыру полисiнiң) номерi, сериясы; 10) шарттың талаптарына өзгерiстер енгiзу жағдайлары мен тәртiбi;
10-1) сақтанушының шарт жасасу кезінде сақтандырушыға хабарланған мән-жайларда өзіне белгілі болған елеулі өзгерістер туралы, егер бұл өзгерістер мүліктік сақтандыру шартының қолданылу кезеңінде сақтандыру тәуекелінің
ұлғаюына елеулі түрде әсер етуі мүмкін болса, сақтандырушыға дереу хабарлау міндеті (осы Кодекстің 1-тармағы);834-бабының
11) сатып алу сомасын төлеу талаптары мен мөлшері (сақтанушының инвестицияларға қатысу талабы көзделетін сақтандыру шарттарын қоспағанда, жинақтаушы сақтандыру үшін);
11-1) сақтанушыны немесе сақтандырылушыны сақтандыру төлемiн жүзеге асыруға қажетті жетіспейтін құжаттар туралы хабардар ету мерзімдері;
12) күші жойылды - ҚР 2012.01.12 N 538-IV (2013.01.01 бастап қолданысқа енгізіледі) Заңымен;
13) күші жойылды - ҚР 2012.01.12 N 538-IV (2013.01.01 бастап қолданысқа енгізіледі) Заңымен;
14) сақтандыру сомасының, сақтандыру төлемi мен сақтандыру сыйақысының валюта түрi.
15) сақтанушының сәйкестендіру нөмірін, резиденттік белгісін және экономика секторын көрсету;
16) егер сақтандырылушы (пайда алушы) сақтандыру шарты бойынша сақтанушы болмаса, сақтандырылушы (пайда алушы) сақтандыру шартында көрсетілген жағдайда, оның сәйкестендіру нөмірін, резиденттік белгісін және экономикасының секторын көрсету.
2. Тараптардың келiсiмi бойынша шартқа өзге де талаптар енгiзiлуi мүмкiн. 2-1. Франшиза - сақтандырушыны сақтандыру талаптарында көзделген,
белгілі бір мөлшерден аспайтын залалды өтеуден босату. Франшиза шартты (шегерілмейтін) және шартсыз (шегерілетін) болады.
Шартты франшиза кезінде сақтандырушы франшизаның белгіленген мөлшерінен аспайтын залалды өтеуден босатылады, бірақ егер оның мөлшері осы сомадан көп болса, залалды толық өтеуге тиіс.
Шартсыз франшиза кезінде залал барлық жағдайларда белгіленген сома шегеріле отырып өтеледі.
Франшиза сақтандыру сомасына қатысты процент бойынша не абсолютті мөлшерде белгіленеді.
3. Егер сақтандыру шартында заң актiлерiнде көзделгендермен салыстырғанда сақтанушының жағдайын нашарлататындай талаптар болса, осы заң актiсiмен белгiленген ережелер қолданылады.
4. Егер қайта сақтандыру шартында өзгеше көзделмесе, қайта сақтандырушының қайта сақтандыру шарты бойынша жауаптылық кезеңi сақтандырушының сақтандыру шарты бойынша мiндеттемесi қайта сақтандыруға берiлген сақтандыру шарты бойынша жауаптылық кезеңiне сәйкес келуге тиiс.
5. Сақтандыру шартында көрсетілуге тиіс талаптардың толық еместігі үшiн сақтандырушы жауапты болады.
Ескерту. 826-бапқа өзгерістер енгізілді - ҚР 2000.12.18 N 128, 2006.02.20 N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2007.01.12 N 225, 2009.12.30 № 234-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2012.01.12 N 538-IV ( қолданысқа енгізілу тәртібін 2-б. қараңыз); 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
826-1-бап. Жинақтаушы сақтандыру шарты бойынша сақтандыру сыйлықақысын төлеудiң мерзiмiн ұзарту
1. Сақтандыру жарнасын (алғашқысын қоспағанда) жинақтаушы сақтандыру шартында белгіленген мерзімде алмаған сақтандырушы сақтанушыны сақтандыру жарнасын төлеу қажеттiгi туралы хабардар етуге мiндеттi.
2. Хабарламада: 1) сақтандыру жарнасын төлейтiн кезең (сақтандыру сыйлықақысының
мерзiмiн ұзарту кезеңi); 2) сақтандыру жарнасын төлеу мерзiмiн өткiзiп алғаны үшiн өсiмпұлдың
мөлшерi; 3) сақтандырушының сақтандыру сыйлықақысының мерзiмiн ұзарту кезеңi
iшiнде сақтандыру жарнасы төленбеген жағдайда шарттың қолданылуын бiржақты тәртiппен тоқтату құқығы болуға тиiс.
3. Сақтандыру сыйлықақысының мерзiмiн ұзарту кезеңi 30 күнтiзбелiк күннен кем болмауға тиiс.
4. Жинақтаушы сақтандыру шарты бойынша сақтандыру сыйлықақысының мерзiмiн ұзарту кезеңiнде сақтандыру жағдайы басталған кезде сақтандырушы берешек сомасын ұстай отырып, сақтандыру төлемiн жүзеге асыруға мiндеттi.
5. Сақтандыру жарнасын төлеу қажеттiгi туралы хабарлама сақтанушыға оның жiберiлгенiн растауға мүмкiндiк беретiн тәсiлмен жiберiледi.
Ескерту. 826-1-баппен толықтырылды - Қазақстан Республикасының 2000.12.18. N 128 , өзгерту енгізілді - 2006.02.20. N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2- б. қараңыз) Заңдарымен.
826-2-бап. Жинақтаушы сақтандыру шартының қолданылуын қалпына келтiру
1. Егер жинақтаушы сақтандыру шартының қолданылуы сақтанушының сақтандыру жарнасын төлемеуi негiзiнде тоқтатыла тұрса немесе тоқтатылса, сақтанушы:
1) алынып тасталды ; 2) мерзiмi өтiп кеткен сақтандыру жарналарын; 3) сақтандыру жарналарын осы Кодекстiң 353-бабында көзделген мөлшерде
төлеудiң мерзiмiн өткiзiп алғаны үшiн өсiмпұлды төлеген кезде сақтандырушы шарттың қолданылуын қалпына келтiруге мiндеттi.
2. Сақтанушы шарттың қолданылуы тоқтатылған немесе шарт тараптарының өз мiндеттемелерiн орындауын тоқтата тұрған күннен бастап бiр жыл iшiнде жинақтаушы сақтандыру шартының қолданылуын қалпына келтiруге құқылы.
3. Сақтандырушы жинақтаушы сақтандыру шартының қолданылуын қалпына келтiрген кезде сақтандырылған адамның денсаулық жағдайына медициналық сараптама жүргiзуге құқылы.
Сақтандырылған адамның денсаулық жағдайы нашарлаған жағдайда сақтандырушы сақтандыру төлемiнiң және (немесе) сақтандыру сыйлықақысының мөлшерiн қайта есептеуге құқылы. Сақтанушы шарттың қолданылуын жаңа талаптармен қалпына келтiруден бас тартқан жағдайда шартты қалпына келтiруге болмайды.
4. Егер жинақтаушы сақтандыру шартының қолданылуы мерзімінен бұрын тоқтатылса және сақтандырушы сатып алу сомасын төлеген болса, сақтандырушы мұндай шарттың қолданылуын қалпына келтіруден бас тартуға құқылы.
Ескерту. 826-2-баппен толықтырылды – ҚР 2000.12.18. N 128 , өзгерту енгізілді - 2006.02.20. N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңдарымен.
826-3-бап. Бас полистi ресiмдеу жолымен шарт бойынша сақтандыру
1. Сақтанушының сақтандырушымен келісімi бойынша бiртекті мүлiктiң ( тауарлардың, жүктердiң және басқаның) әртүрлi партиясын белгiлi бiр мерзiм iшiнде ұқсас жағдайларда жүйелi сақтандыру сақтанушыға бас полис ресімдеу арқылы бiр сақтандыру шарты негiзiнде жүзеге асырылуы мүмкiн.
2. Сақтанушы осы баптың 1-тармағында аталған шарттың күшi қолданылатын мүлiктiң әрбiр топтамасына қатысты мұндай шартта көзделген мәлiметтердi сақтандырушыға ол көздеген мерзiмде хабарлауға, ал егер ол көзделмесе, оны алғаннан кейiн дереу хабарлауға мiндеттi. Сақтанушы, тiптi, мұндай мәлiметтердi алған кезде сақтандырушы өтеуге тиiстi шығынның болу мүмкiндiгi iске аспай қалса да, бұл мiндеттен босатылмайды.
3. Сақтанушының талап етуiмен сақтандырушы осы баптың 1-тармағында аталған шарттың күшi қолданылатын мүлiктiң жекелеген топтамалары бойынша сақтандыру полистерiн беруге мiндеттi.
Сақтандыру полисiнiң мазмұны бас полиске сәйкес келмеген жағдайда сақтандыру полисiне басымдық берiледi.
Ескерту. 826-3-баппен толықтырылды – ҚР 2000.12.18. N 128 Заңымен; өзгеріс енгізілді – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
827-бап. Сақтандыру шартының қолданылуы
1. Сақтандыру шарты сақтанушы сақтандыру сыйлықақысын төлеген кезден бастап, ал оны бөлiп-бөлiп төлеу кезiнде, егер шартта немесе Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, бiрiншi сақтандыру жарнасы төленген кезден бастап күшiне енедi және тараптар үшiн мiндеттi болады.
2. Сақтандыру шарты, егер шартта немесе Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, алғашқы басталған сақтандыру жағдайы бойынша сақтандыру төлемі жүзеге асырылған кезден бастап қолданылуын тоқтатады.
3. Сақтандырып қорғаудың қолданылу мерзiмi, егер шартта немесе Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмесе, шарттың қолданылу мерзiмiне дәл келедi.
Ескерту. 827-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 Заңымен; 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
828-бап. Сақтандырушының мiндеттерi
1. Сақтандырушы: 1) сақтандыру жағдайы басталған кезде сақтандыру шартында немесе заң
актiлерiнде белгiленген мөлшерде, тәртiппен және мерзiмдерде сақтандыру төлемiн жүргiзуге;
1-1) сақтанушыны сақтандыру қағидаларымен таныстыруға және оның талап етуі бойынша қағидалардың көшiрмесiн ұсынуға (жіберуге);
2) сақтанушыға (сақтандырылған адам) сақтандыру жағдайы кезiнде олардың залалдарды азайту үшiн жұмсаған шығындарын өтеуге;
3) сақтандыру құпиясын қамтамасыз етуге; 4) сақтанушы (сақтандырылушы) немесе жәбiрленушi (пайда алушы) не
олардың өкілі сақтандыру төлемін жүзеге асыру үшін қажетті барлық
құжаттарды бермеген жағдайда, оларды сақтандыру шартында белгіленген мерзімде жетіспейтін құжаттар туралы хабардар етуге міндетті.
2. Сақтандыру және сақтандыру қызметi туралы заң актiлерiнде, сондай-ақ сақтандыру шартында сақтандырушының басқа да мiндеттерi көзделуi мүмкiн.
Ескерту. 828-бапқа өзгерту енгізілді - ҚР 2000.12.18 N 128, 2009.12.30 № 234- IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
829-бап. Сақтандыру жағдайынан туындайтын залалдарды азайтуға бағытталған шығындардың орнын толтыру
1. Мүлiктiк сақтандыру шартында көзделген сақтандыру жағдайы басталған кезде, болуы мүмкiн залалдарды болдырмау немесе азайту үшiн сақтанушы ( сақтандырылған адам) қалыптасқан жағдайларда қисынды және қолдан келетiн шаралар, оның iшiнде сақтандырылған мүлікті құтқару және сақтау шараларын қолдануға мiндеттi.
Сақтанушы (сақтандырылған адам) осындай шаралар қолдана отырып, егер олар сақтанушыға (сақтандырылған адамға)хабарланған болса, сақтандырушының нұсқауларын ұстануға тиiс.
2. Залалдарды болдырмау немесе азайту мақсатында сақтанушы ( сақтандырылған адам) шеккен шығындар, егер мұндай шығындар қажет болса немесе сақтандырушының нұсқауларын орындау үшiн жүргiзiлген жағдайда, тиiстi шаралар тiптi сәтсiз болса да, сақтандырушының өтеуiне жатады.
Мұндай шығындар нақты мөлшерде өтеледi, алайда сақтандыру төлемiнiң және шығындар өтемiнiң жалпы сомасы сақтандыру шартында көзделген сақтандыру сомасынан аспауы тиiс. Егер шығындар сақтанушының ( сақтандырылған адамның) сақтандырушы нұсқауларын орындауы нәтижесiнде туындаған болса, олар сақтандыру сомасына қатыссыз толық мөлшерде өтеледi.
3. Болуы мүмкiн залалдарды азайту үшiн сақтанушының (сақтандырылған адамның) қисынды және қолдан келетiн шараларды қасақана қолданбауы салдарынан туындаған залалдар бөлiгiнде сақтандырушы сақтандыру төлемiн жүзеге асырудан босатылады.
Ескерту. 829-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 , 2003.07.01. N 445 Заңдарымен.
830-бап. Сақтандыру құпиясы
1. Сақтандыру құпиясына сақтандыру сомасының, сатып алу сомасының мөлшерлерi туралы және төленген сақтандыру сыйлықақылары, сақтандыру ( қайта сақтандыру) шартының сақтанушының, сақтандырылған адамның немесе пайда алушының жеке басына қатысты өзге де талаптары туралы мәлiметтер жатады. Таратылу процесiндегi сақтандыру (қайта сақтандыру) ұйымы жасаған сақтандыру (қайта сақтандыру) шарты туралы мәлiметтер сақтандыру құпиясына жатпайды.
1-1. Сақтандыру ісі және сақтандыру қызметі туралы заңнамалық актілерде сақтандыру құпиясын құрайтын мәліметтерді жария етудің өзге де талаптары мен тәртібі көзделуі мүмкін.
2. Сақтандыру нарығына кәсiби қатысушылар, сақтандыру агентi өзінің кәсiби қызметi нәтижесiнде алған сақтандыру құпиясын құрайтын мәлiметтердi, сақтандыру нарығының басқа кәсiби қатысушысына не сақтандыру агентiне қайта сақтандыру шарттарын жасасуға немесе ортақ сақтандыру жөніндегі қатынастарға байланысты ақпаратты беру жағдайларын, сондай-ақ осы баптың 4, 4-1, 5 және 6-тармақтарында көзделген жағдайларды қоспағанда, жариялауға құқылы емес.
3. Өздерiнiң қызметтік мiндеттерiн жүзеге асыруына байланысты сақтандыру құпиясын құрайтын мәлiметтерге қолжетімділік алған лауазымды адамдар, сақтандыру (қайта сақтандыру) ұйымының, Қазақстан Республикасының резиденттері-сақтандыру холдингтерінің, сақтандыру брокерлерінің, сақтандыру агенттерінің қызметкерлері, сақтандыру агенттері және өзге де адамдар оларды жария еткені үшiн Қазақстан Республикасының заңдарында көзделген жауаптылықта болады.
4. Сақтандыру құпиясын үшiншi адамға сақтанушының (сақтандырылған адамның, пайда алушының) жазбаша келiсiмi негiзiнде ашуға болады.
4-1. Сақтандыру құпиясы сақтандыру омбудсманына өзінің қарауында жатқан жеке және заңды тұлғалардың сақтандыру шарттарынан туындайтын келіспеушіліктерді реттеу жөніндегі өтініштері бойынша ашылуы мүмкін.
5. Сақтандыру құпиясы бар мәлiметтер: 1) сақтанушының (пайда алушының) өкiлiне - нотариатта куәландырылған
сенiмхат негiзiнде; 2) анықтау және алдын ала тергеу органына - оның өндiрiсiндегi қылмыстық
iстер бойынша; 3) сотқа - сот ұйғарымы немесе қаулысы негiзiнде оның өндiрiсiндегi iстер
бойынша; 4) прокурорға - оның құзыретi шегiнде өзiнiң қарауындағы материалдар
бойынша тексеру жүргiзу туралы қаулы негiзiнде;
4-1) қаржы мониторингі жөніндегі уәкілетті органға - "Қылмыстық жолмен алынған кірістерді заңдастыруға (жылыстатуға) және терроризмді қаржыландыруға қарсы іс-қимыл туралы" Қазақстан Республикасының Заңында көзделген мақсатта және тәртіппен;
4-2) "Қазақстан Республикасында зейнетақымен қамсыздандыру туралы" Қазақстан Республикасының Заңы 59-бабының көзделген4-тармағында мақсаттарда "Азаматтарға арналған үкімет" мемлекеттік корпорациясына;
4-3) салықтардың және бюджетке төленетін басқа да міндетті төлемдердің түсімдерін қамтамасыз ету саласындағы басшылықты жүзеге асыратын уәкілетті мемлекеттік органға:
тексерілетін жеке тұлғалар жасаған сақтандыру шарттарына; пайда алушылары бейрезидент-жеке тұлғалар болып табылатын жинақтаушы
сақтандыру шарттарына; Қазақстан Республикасының халықаралық шартына сәйкес жіберілген, шет
мемлекеттің уәкілетті органының сұрау салуында көрсетілген, пайда алушылары бейрезидент-жеке тұлғалар болып табылатын жинақтаушы сақтандыру шарттарына қатысты Қазақстан Республикасының салық заңнамасына сәйкес;
4-4) Қазақстан Республикасының ұлттық қауіпсіздік органдарына көлік құралдары иелерінің азаматтық-құқықтық жауапкершілігін міндетті сақтандыру шарттарына қатысты – "Қазақстан Республикасының ұлттық қауіпсіздік органдары туралы" Қазақстан Республикасының Заңында көзделген мақсаттарда және тәртіппен, ал өзге сақтандыру шарттарына қатысты – прокурордың санкциясымен;
4-5) барлау және (немесе) нұқсан келтіру акцияларының алдын алу, әшкерелеу және жолын кесу мақсаттарында прокурордың санкциясымен Қазақстан Республикасының Мемлекеттік күзет қызметіне;
5) уәкiлеттi мемлекеттiк органға - сақтандыру қызметiн қадағалауды жүзеге асыруға байланысты мәселелер бойынша;
5-1) Қазақстан Республикасының резиденті-сақтандыру холдингіне – сақтандыру тобының пруденциялық нормативтерін есептеу, сондай-ақ сақтандыру тобының тәуекелдерін басқару және ішкі бақылау жүйесін қалыптастыру мақсаттары үшін;
6) Қазақстан Республикасының сақтандыру ісі және сақтандыру қызметі туралы заң актілеріне сәйкес өзге де тұлғаларға беріледі.
Қазақстан Республикасының Ұлттық Банкі сақтандыру құпиясын құрайтын мәліметтерді аудиторлық ұйымға "Сақтандыру қызметі туралы" Қазақстан Республикасы Заңының 20-бабы 13-тармағының бесінші бөлігіне сәйкес ұсынуы мүмкін.
6. Сақтандыру құпиясы бар мәлiметтер сақтанушы, сақтандырылған адам, пайда алушы қайтыс болған соң:
1) мұрагерлерге; 2) соттарға және нотариустарға - соттың ұйғарымы, қаулысы немесе
нотариустың мөрi басылған жазбаша сауалы негiзiнде олардың өндiрiсiндегi мұрагерлiк iстер бойынша берiледi. Нотариустың жазбаша сауалына сақтанушының қайтыс болғаны туралы куәлiктiң көшiрмесi қоса тiркелуге тиiс;
3) шетелдiк консулдық мекемелерге - олардың өндiрiсiндегi мұрагерлiк iстер бойынша берiледi.
7. Сақтандыру қызметiн жүзеге асырудың жалпы шарттары, ұсынылатын сақтандыру қызметтерiнiң тiзбесi, сақтандыру тарифтерi, сақтандыру мерзiмдерi, сондай-ақ сақтандыру (қайта сақтандыру) шартының өзге де негiзгi талаптары ашық ақпарат болып табылады және сақтандыру құпиясы мен коммерциялық құпияның нысанасы бола алмайды.
8. Сақтандырушы сақтандыру құпиясы бар мәлiметтердi жария еткен жағдайда сақтанушы (сақтандырылған адам, пайда алушы) келтiрiлген шығынды өтеудi, ал тиiстi жағдайларда - моральдық нұқсанның орнын толтыруды талап етуге құқылы.
Ескерту. 830-бап жаңа редакцияда - ҚР 2000.12.18 N 128, өзгерістер енгізілді - 2003.0710 N 483 (01.01.2004 бастап күшіне енеді), 2004.02.27 N 527 (01.01.2004 бастап күшіне енеді), 2006.02.20 N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2009.08.28 N 192-IV (2010.03.08 бастап қолданысқа енгізіледі), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз), 2012.06.21 N 19 -V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 2014.06.10 № 206-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 17.11.2015 № 408-V (01.03.2016 бастап қолданысқа енгізіледі); 24.11.2015 № 422-V (01.01.2016 бастап қолданысқа енгізіледі); 06.04.2016 № 483-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 18.11.2015 № 412-V (01.01.2017 бастап қолданысқа енгізіледі) ; 28.12.2016 № 36-VI (алғашқы ресми жарияланған күнінен кейін екі ай өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 168-VІ (01.01.2019 бастап қолданысқа енгізіледі) Заңдарымен.
831-бап. Сақтанушының мiндеттерi
1. Сақтанушы:
1) сақтандыру шарты белгiлеген мөлшерде, тәртiппен және мерзiмдерде сақтандыру сыйлықақыларын төлеуге;
2) сақтандыру тәуекелiнiң жай-күйі туралы сақтандырушыны хабардар етуге; 3) сақтандырушыға сақтандыру жағдайының басталғандығы туралы
хабарлауға; 4) сақтандыру жағдайынан туатын залалдарды азайту үшiн шаралар
қолдануға (осы Кодекстiң 829-бабының 1-тармағы); 5) сақтандыру жағдайының басталғандығы үшiн жауапты адамнан талап ету
құқығының сақтандырушыға өтуiн қамтамасыз етуге мiндеттi (осы Кодекстiң 840 -бабы).
2. Сақтандыру шартында сақтанушының басқа да мiндеттерi көзделуі мүмкін. Ескерту. 831-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18
. N 128 Заңымен . 832-бап. Сақтанушы шарт жасасу кезiнде ұсынатын мәлiметтер
1. Сақтанушы шарт жасасу кезінде сақтандырушыға сақтандыру жағдайының басталу ықтималдығын және оның басталуынан (сақтандыру тәуекелінен) келтірілуі ықтимал залалдардың мөлшерiн айқындау үшiн елеулi мәнi бар, сақтанушының өзіне белгілі мән-жайларды, егер бұл мән-жайлар сақтандырушыға белгілі болмаса және белгілі болуға тиiстi болмаса, хабарлауға мiндеттi.
Сақтандырушы әзірлеген сақтандыру қағидаларында немесе шарт жасасу кезеңiнде сақтанушыға жіберілген сақтандырушының жазбаша сұрау салуында айқын жазылған мән-жайлар елеулi деп танылады.
Міндетті сақтандыру шартын жасасу кезінде Қазақстан Республикасының сақтандырудың міндетті түрлерін реттейтін жекелеген заңнамалық актілерінде белгіленген мән-жайлар елеулi деп танылады.
2. Сақтандырушының елеулі мән-жайларға қатысты жазбаша сұрау салуында көрсетілген сұрақтарға сақтанушының жауаптары болмаған кезде сақтандыру шарты жасалмайды.
Егер сақтандыру шарты сақтандырушының қандай да бiр сұрақтарына сақтанушының жауаптары болмаған кезде жасалған болса, сақтандырушы сақтанушының тиісті мән-жайларды хабарламағанын негiзге ала отырып, кейiннен шартты бұзуды немесе оны жарамсыз деп тануды талап ете алмайды.
3. Егер шарт жасалғаннан кейін сақтанушының сақтандырушыға осы баптың 1-тармағында көрсетiлген мән-жайлар туралы көрiнеу жалған мәлiметтер хабарлағаны анықталатын болса, сақтандырушы шартты жарамсыз деп тануды және осы Кодекстiң 1-тармағының екiншi және үшiншi бөлiктерiнде844-бабы көзделген салдарларды қолдануды талап етуге құқылы.
Егер сақтанушы айтпай қалған мән-жайлар қажет болмай қалса, сақтандырушы шартты жарамсыз деп тануды талап ете алмайды.
Ескерту. 832-бап жаңа редакцияда – ҚР 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
833-бап. Сақтандыру тәуекелiн және келтiрiлген зиянды бағалау
1. Мүлікті сақтандыру шартын жасасқан кезде сақтандырушы сақтандырылатын мүлiктi қарап тексеруге және бағалауға, ал қажет болған кезде оның шынайы құнын анықтау мақсатында сараптама тағайындауға құқылы.
Сақтандырылатын мүлiкке және келтiрілген зиянға сақтандырушы жүзеге асыратын бағалау сақтандырудың құрамдас бөлiгi болып табылады және қосымша лицензиялауды талап етпейдi.
2. Жеке сақтандыру шартын жасау кезiнде сақтандырушы оның нақты денсаулық жағдайына баға беру үшiн сақтандырылатын адамға тексеру жүргiзуге құқылы.
3. Сақтандырушының сақтандыру тәуекелiне осы баптың негiзiнде берген бағасы өзгеше дәлелдеуге құқығы бар сақтанушы үшiн мiндеттi емес.
4. Сақтандыру жағдайының басталуы нәтижесiнде келтiрiлген зиянның мөлшерiн сақтанушының немесе оның өкiлiнiң өтiнiшi бойынша сақтандырушы айқындайды. Қажет болған жағдайда келтiрiлген зиянның мөлшерiн бағалауды бағалаушы (тәуелсiз сарапшы) жүргiзедi. Келтiрiлген зиянды бағалау нәтижелерiмен келiспеген жағдайда тараптар өзгеше дәлелдеуге құқылы.
5. Міндетті сақтандыру кезінде сақтандыру жағдайының басталуы салдарынан келтірілген зиян мөлшерін бағалауды жүргізу тәртібі мен талаптары Қазақстан Республикасының заңнамалық актілерінде белгіленуі мүмкін.
Ескерту. 833-бапқа өзгерту енгізілді – ҚР 2003.07.01. N 445, 2007.05.07. N 244 (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
834-бап. Шарттың қолданылуы кезеңiнде сақтандыру тәуекелiнiң ұлғаю салдары
1. Мүлiктiк сақтандыру шартының қолданылуы кезеңiнде сақтанушы ( сақтандырылған адам) шарт жасау кезінде сақтандырушыға хабарланған мән-жайлардағы өзiне белгiлі болған елеулi өзгерiстер туралы, егер бұл өзгерiстер сақтандыру тәуекелiн арттыруға елеулі ықпал жасайтындай болса, сақтандырушыға дереу хабарлауға мiндеттi.
Қалай болғанда да сақтандыру шартында айтылған өзгерiстер елеулi деп танылады.
2. Сақтандыру тәуекелiн арттыруға әкеп соғатын мән-жайлар туралы хабардар етілген сақтандырушы, шарттың талаптарын өзгертудi немесе тәуекелдiң артуымен мөлшерлес қосымша сақтандыру сыйлықақысын төлеудi талап етуге құқылы.
Егер сақтанушы немесе сақтандырылған адам сақтандыру шартының талаптарын өзгертуге және сақтандырудың қосымша сыйлықақысын төлеуге қарсылық білдірсе, сақтандырушы осы Кодекстің 24-тарауында көзделген ережелерге сәйкес шартты бұзуды талап етуге құқылы.
3. Сақтанушы немесе сақтандырылған адам осы баптың 1-тармағында көзделген мiндеттердi орындамаған жағдайда сақтандырушы шартты бұзуды және шартты бұзудан болған залалдардың орнын толтыруды талап етуге құқылы.
4. Егер сақтандыру тәуекелiн арттыруға әкеп соғатын мән-жайлар жоққа шығып қалған болса, сақтандырушының шартты бұзуды талап етуге құқығы жоқ.
5. Жеке сақтандыру кезiнде, осы баптың 2 және 3-тармақтарында көрсетiлген шарттың қолданылуы кезеңiнде сақтандыру тәуекелiн өзгертудiң салдары, егер олар шартта тiкелей көзделген болса, басталуы мүмкiн.
Ескерту. 834-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 Заңымен.
835-бап. Сақтандыру жағдайының басталғаны туралы сақтандырушыны хабардар ету
1. Сақтанушы сақтандыру жағдайының басталғаны туралы өзiне мәлiм болған соң оның басталғандығы жөнiнде сақтандырушыға немесе оның өкiлiне дереу хабарлауға мiндеттi. Егер шартта немесе Қазақстан Республикасының заңнамалық актiсiнде хабардар ету мерзiмi және (немесе) тәсiлi көзделсе, ол келiсiлген мерзiмде және шартта немесе Қазақстан Pecпубликасының заң актiсiнде көрсетiлген тәсiлмен жасалуға тиiс.
Егер сақтанушы сақтандырылған адам болып табылмаса, мұндай мiндет сақтандырылған адамға жүктеледi.
Егер жеке сақтандыру кезiнде сақтандырылған адамның қайтыс болуы сақтандыру жағдайы болып табылса, сақтандыру жағдайы туралы сақтандырушыға хабарлау мiндетi сақтанушыға, ал егер оның өзi бiр мезгiлде сақтандырылған адам болса - пайда алушыға жүктеледi. Бұл ретте сақтандырушыға хабарлаудың шартта белгiленген мерзiмi отыз күннен кем болмауы тиiс.
2. Пайда алушының барлық жағдайларда, мұны сақтанушының немесе сақтандырылған адамның жасаған-жасамағанына қарамастан, сақтандырушыға сақтандыру жағдайының басталғаны туралы хабарлауға құқығы бар.
3. Егер сақтандыру жағдайының басталғаны туралы сақтандырушының дер кезiнде бiлгендiгi дәлелденбесе не бұл жөнiндегi мәлiметтердiң сақтандырушыда болмауы оның сақтандыру төлемi мiндеттерiне ықпал етпейтiн болса, сақтандыру жағдайының басталғандығы туралы сақтандырушыға хабар бермеу оған сақтандыру төлемiн жүзеге асырудан бас тарту құқығын бередi.
4. Сақтандырушыны сақтандыру жағдайының басталғаны туралы хабардар етпеу немесе уақтылы хабардар етпеу, егер ол сақтанушының еркіне байланысты емес немесе сақтандыру шартымен дәлелдіге жатқызылмаған себептерге байланысты болса және осы фактіні растайтын тиісті құжаттар ұсынылса, сақтандыру төлемін жүзеге асырудан бас тарту үшін негіз болып табылмайды.
Ескерту. 835-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128, 2003.07.01. N 445 ; 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
836-бап. Сақтанушыны ауыстыру
1. Мүлiктi сақтандыру шартын жасасқан сақтанушы қайтыс болған жағдайда сақтанушының құқықтары мен мiндеттерi мұрагерлiк тәртiбiмен осы мүлiктi қабылдаған адамға ауысады. Меншiк құқықтары (немесе өзге де заттық құқықтары) ауысуының басқа жағдайларында сақтанушының құқықтары мен мiндеттерi, егер шартта немесе заң актiлерiнде өзгеше белгiленбесе, сақтандырушының келiсуiмен жаңа меншiк иесiне (немесе өзге де заттық құқықтардың иесiне) ауысады.
2. Жеке сақтандыру шартын сақтандырылған адамның пайдасына жасаған сақтанушы қайтыс болған жағдайда, осы шартта айқындалған құқықтар мен мiндеттер оның келiсімiмен сақтандырылған адамға ауысады. Сақтандыру шарты бойынша міндеттерді сақтандырылған адамның орындауы мүмкін болмаған жағдайда, оның құқықтары мен міндеттері заң актілеріне сәйкес оның құқықтарын және заңды мүдделерiн қорғау жөнiндегi мiндеттердi жүзеге асырушы тұлғаларға ауысуы мүмкiн.
3. Заңды тұлға болып табылатын сақтанушыны қайта ұйымдастырған кезде, сақтандыру шарты қолданылу кезеңiндегi оның осы шарт бойынша құқықтары мен мiндеттерi сақтандырушының келiсуiмен, осы Кодексте айқындалған тәртiппен тиiстi құқықтық мирасқорға ауысады.
837-бап. Сақтандырылған адамды ауыстыру
1. Зиян келтiргенi үшiн жауаптылық шарты бойынша сақтанушыдан өзге тұлғаның жауапкершілігі сақтандырылған жағдайда, сақтанушы, егер сақтандыру шартында өзгеше көзделмесе, сақтандырушыны бұл туралы жазбаша хабардар ете отырып, сақтандыру жағдайы басталғанға дейін кез келген уақытта осы тұлғаны басқамен ауыстыруға құқылы.
2. Жеке сақтандыру, сондай-ақ мүлiктiк сақтандыру шартында аталған сақтанушы болып табылмайтын сақтандырылған адам тек өзінің ( топтастырылған жеке сақтандыруды қоспағанда,)және сақтандырушының келісімі бойынша ғана басқа тұлғамен ауыстырылуы мүмкiн.
3. Егер үшiншi тұлғаны сақтандыру Қазақстан Республикасы заңнамалық актілерінің талаптарынан туындайтын болса, сақтандырылушыны ауыстыру Қазақстан Республикасының көрсетілген заңнамалық актілерінде белгіленген тәртiппен және соларға негiзделген шартпен жүзеге асырылады.
Ескерту. 837-бапқа өзгерту енгізілді – ҚР 2000.12.18. N 128 Заңымен; 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
838-бап. Пайда алушыны ауыстыру
1. Сақтанушы сақтандыру жағдайы басталғанға дейiн сақтандырылған адам болып табылмайтын, сақтандыру шартында аталған пайда алушыны, бұл жөнiнде сақтандырушыны жазбаша хабардар етіп, басқа адаммен ауыстыруға құқылы.
2. Пайда алушыны оның сақтанушымен жасаған келiсiмiнен туындайтын белгiлi бiр мiндеттердi сақтандыру шарты бойынша орындағаннан немесе сақтандырушыға сақтандыру төлемiн жүзеге асыру жөнiндегi талап қойғаннан кейін басқа адаммен ауыстыруға болмайды.
3. Сақтандырылған адам болып табылатын пайда алушыны ауыстыру осы Кодекстің 837-бабында көзделген тәртiппен жүргiзiледi.
Ескерту. 838-бапқа өзгерту енгізілді - Қазақстан Республикасының 2000.12.18 . N 128 Заңымен .
839-бап. Сақтандырушыны сақтандыру төлемiн жүзеге асырудан босатудың негiздерi
1. Сақтандырушы, егер сақтандыру жағдайы: 1) сақтанушының, сақтандырылған адамның және (немесе) пайда алушының,
қажетті қорғану және аса қажетті жағдайда жасалған іс-әрекеттерді қоспағанда, сақтандыру жағдайын тудыруға бағытталған не оның басталуына ықпал ететін қасақана жасалған іс-әрекетінің;
2) сақтанушының, сақтандырылған адамның және (немесе) пайда алушының Қазақстан Республикасының заңнамалық актілерінде белгіленген тәртіппен сақтандыру жағдайымен себептік байланыстағы қасақана қылмыстық немесе әкімшілік құқық бұзушылықтар деп танылған әрекеттерінің салдарынан болса, сақтанушыға сақтандыру төлемінен толық немесе ішінара бас тартуға құқылы.
Егер сақтандыру жағдайы жауаптылықта сақтандыру объектiсi болып табылатын тұлғаның кiнәсiнен болса, онда сақтандырушы азаматтық-құқықтық жауаптылықты сақтандыру шарты бойынша сақтандыру төлемiн жүзеге асырудан босатылмайды.
Сақтандырушы сақтандырылған адам қайтыс болған жағдайда, егер өлiм өзiн-өзi өлтiрудiң салдарынан болса және осы уақытқа дейiн сақтандыру шарты кемiнде екi жыл қолданылып келсе, жеке сақтандыру шарты бойынша төленуге тиiс сақтандыру төлемiн жүзеге асырудан босатылмайды.
2. Өз еркiмен сақтандыру шартында және Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмегендiктен, егер сақтандыру жағдайы:
1) ядролық жарылыстың, радиацияның немесе радиоактивтiк зақымданудың әсерi;
2) әскери қимылдардың; 3) азамат соғысының, алуан түрлі халық толқуларының, жаппай тәртiп
бұзушылықтардың немесе ереуiлдердiң салдарынан басталған болса, сақтандырушы сақтандыру төлемiн жүзеге асырудан босатылады.
3. Мүлiктiк сақтандыру шартында өзгеше көзделмегендiктен, сақтандырушы алып қою, тәркілеу, реквизициялау, тұтқындау немесе мемлекеттiк органдардың өкiмiмен сақтандырылған мүліктерді жою салдарынан болған залалдар үшін сақтандыру төлемiн жүзеге асырудан босатылады.
4. Сақтандырушының сақтандыру төлемiн жүзеге асырудан бас тартуы үшiн мыналар да:
1) сақтанушының сақтандырушыға, сақтандыру объектiсi, сақтандыру тәуекелi, сақтандыру жағдайы және оның зардаптары туралы көрінеу жалған мәлiметтер хабарлауы;
2) сақтанушының сақтандыру жағдайынан болған залалдарды азайту жөнiндегi шараларды қасақана қолданбауы (осы Кодекстiң 829-бабы);
3) сақтанушының залалдар келтiруге кiнәлi тұлғадан мүлiктiк сақтандыру бойынша залалдарға тиiстi өтем алуы;
4) сақтанушының сақтандыру жағдайы басталуының мән-жайын тексеруде және одан келген залалдардың мөлшерiн белгiлеуде сақтандырушыға кедергi жасауы;
5) сақтандыру жағдайының басталғандығы туралы сақтандырушыға хабарламау (осы Кодекстiң 835-бабы);
6) сақтанушының сақтандыру жағдайының басталғандығы үшін жауапты адамға талап қою құқықтарынан бас тартуы, сондай-ақ сақтандырушыға талап ету құқығын өткiзу үшiн қажеттi құжаттарды беруден бас тартуы (осы Кодекстiң 840-бабы). Егер сақтандыру өтемi ендiгi төленiп қойған болса, сақтандырушы оның толық немесе iшiнара қайтарылуын талап етуге құқылы;
7) заң актiлерiнде көзделген басқа да жағдайлар негiз болуы мүмкiн. 5. Сақтандырушыны сақтанушының алдындағы сақтандыру жауаптылығынан
оның осы бапта көзделген заңсыз iс-қимылдарының себептерi бойынша босату, сақтандырушыны сонымен бiр мезгiлде сақтандырылған адамға немесе пайда алушыға сақтандыру төлемiн жүзеге асырудан да босатады.
6. Сақтандыру шартының талаптары бойынша, егер бұл заң актiлерiне қайшы келмейтiн болса, сақтандыру төлемінен бас тартудың басқа да негiздерi көзделуi мүмкiн.
7. Сақтандыру төлемінен бас тарту туралы шешiмдi сақтандырушы қабылдайды және ол бас тартудың дәлелдi негiздерiмен жазбаша нысанда сақтанушыға хабарланады.
8. Сақтандырушының сақтандыру төлемiн жүргізуден бас тартуына сақтанушы сотқа шағымдануы мүмкін.
Ескерту. 839-бапқа өзгертулер енгізілді - ҚР 2000.12.18 N 128, 2006.02.20 N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 03.07.2014 № 227-V ( 01.01.2015 бастап қолданысқа енгізіледі); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
840-бап. Сақтанушының залалдарды өтеу құқықтарының сақтандырушыға ауысуы (суброгация)
1. Егер мүлiктiк сақтандыру шартында өзгеше көзделмесе, сақтандыру төлемiн жүзеге асырған сақтандырушыға сол төленген соманың шегiнде, сақтандыру нәтижесiнде өтелген залалдар үшiн жауапты адамға қоятын сақтанушының (сақтандырылған адамның) талап қою құқығы ауысады. Алайда қасақана залал келтiрген адамға талап қою құқығының сақтандырушыға ауысуын жоққа шығаратын шарт талабы маңызсыз болады.
2. Сақтандырушыға ауысқан талап қою құқығы сақтанушы (сақтандырылған адам) мен залалдар үшiн жауапты адамның арасындағы қатынасты реттейтiн ережелерді сақтай отырып жүзеге асырылады.
3. Сақтанушы (сақтандырылған адам) сақтандыру төлемiн алған кезде сақтандырушыға барлық құжаттар мен айғақтарды беруге және оған талап қою
құқықтарын жүзеге асыру үшiн қажеттi барлық мәлiметтердi хабарлауға мiндеттi .
4. Егер сақтанушы (сақтандырылған адам) сақтандырушы төлеген шығындар үшiн жауап беретiн адамға талап қою құқықтарынан бас тартса немесе сақтанушының (сақтандырылған адамның) кiнәсiнен бұл құқықты жүзеге асыру мүмкiн болмаса, сақтандырушы сақтандыру төлемiн толық немесе тиiсiнше оның бiр бөлiгiн жүзеге асырудан босатылады және артық төлеген соманы қайтаруды талап етуге құқылы.
Ескерту. 840-бапқа өзгерістер енгізілді - ҚР 2000.12.18. N 128 Заңымен; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
841-бап. Сақтандыру шартын мерзiмiнен бұрын тоқтату
1. Осы Кодексте көзделген мiндеттемелердi тоқтатудың жалпы негiздерiнен басқа, сақтандыру шарты мынадай жағдайларда:
1) сақтандыру объектiсi өмiр сүруiн тоқтатқан; 2) сақтанушы болып табылмайтын сақтандырылған адам қайтыс болғанда, ол
ауыстырылмаған (осы Кодекстiң 815-бабының 8-тармағы); 3) сақтанушы мүлiктiк сақтандыру объектiсiн өз иелiгiнен шығарған, егер
сақтандырушы сақтанушыны ауыстыруға қарсылық білдірсе, ал шартта немесе Қазақстан Республикасының заңнамалық актілерінде өзгеше көзделмеген осы Кодекстiң 836-бабының 1-тармағы);
4) өзiнiң кәсiпкерлiк тәуекелiн немесе осы қызметке байланысты азаматтық-құқықтық жауаптылығын сақтандырған сақтанушы белгiленген тәртiппен кәсiпкерлiк қызметiн тоқтатқан;
5) сақтандыру жағдайының басталу мүмкiндiгi жойылған және сақтандыру жағдайынан басқа жағдайлар бойынша сақтандыру тәуекелiнiң болуы тоқтатылған;
6) "Сақтандыру қызметі туралы" Қазақстан Республикасының Заңында көзделген жағдайларды қоспағанда, соттың сақтандырушыны мәжбүрлеп тарату туралы шешімі заңды күшіне енгізілген;
7) алып тасталды - ҚР 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз) Заңымен;
8) сақтандырушы Қазақстан Республикасының заңнамалық актілерінде көзделген тәртiппен ресімдеген сақтандыру полисiне енгiзiлген талаптар мен мәлiметтер өзгертілген;
9) "Сақтандыру қызметі туралы" Қазақстан Республикасының Заңында көзделген жағдайларда мерзімінен бұрын тоқтатылады.
Аталған жағдайларда шартты тоқтату үшiн негiз ретiнде көзделген мән-жайлар туындаған кезден бастап шарт тоқтатылған болып есептеледi, бұл туралы мүдделi тарап дереу екiншiсiн хабардар етуге тиiс.
1-1. Егер жинақтаушы сақтандыру шарты бойынша сақтанушы шарт жасасқан күннен бастап он төртінен отызына дейінгі кезеңде оны біржақты тәртіппен бұзса, онда сақтандырушы жинақтаушы сақтандыру шартын жасасқан кезде сақтандыру сыйлықақысының сомасынан алынған жиырма проценттен аспайтын, сақтандырушы көтерген шығыстар шегеріле отырып, алынған сақтандыру сыйлықақысының сомасын сақтанушыға қайтаруға міндетті.
2. Сақтанушы сақтандыру шартын кез келген уақытта бұзуға құқылы. Ескерту. 841-бапқа өзгертулер енгізілді - ҚР 2003.07.10 N 483, 2006.02.20 N
128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2009.12.30 № 234-IV ( қолданысқа енгізілу тәртібін 2-б. қараңыз), 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз); 02.07.2018 № 166-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
842-бап. Сақтандыру шартын мерзімінен бұрын тоқтатудың салдары
1. Жинақтаушы емес сақтандыру шарты осы Кодекстiң 841-бабының 1- тармағында көзделген жағдайлар бойынша мерзiмiнен бұрын тоқтатылған кезде сақтандырушының сақтандыру сыйлықақысының осы сақтандыру қолданылған уақытқа барабар бөлiгiне құқығы бap. Сақтандырушыны тарату кезiнде сақтандыру сыйлықақыларын (жарналарын) қайтару Қазақстан Республикасының сақтандыру ісі және сақтандыру қызметi туралы заңнамасында белгiленген кредиторлардың талаптарын қанағаттандыру кезектілігіне сәйкес жүзеге асырылады.
Жинақтаушы сақтандыру шарты осы Кодекстің 841-бабының 1-тармағының 6 ) тармақшасында және осы баптың 3-тармағында көзделген жағдайларда мерзімінен бұрын тоқтатылған кезде сатып алу сомасы шартта белгіленген мөлшерде ғана және Қазақстан Республикасының сақтандыру және сақтандыру қызметі туралы заңнамасында белгіленген кредиторлардың талаптарын қанағаттандыру кезектілігіне сәйкес қайтарылуға тиіс.
2. Сақтанушы шарттан бас тартқан кезде (осы Кодекстiң 841-бабының 2- тармағы), егер бұл осы Кодекстiң 841-бабының 1 және 1-1-тармақтарында көрсетілген мән-жайлармен байланысты болмаса, егер шартта өзгеше көзделмесе , сақтандырушыға төленген сақтандыру сыйлықақысы не сақтандыру жарналары қайтарылуға жатпайды.
3. Сақтандыру шартының мерзiмiнен бұрын тоқтатылуы шарт талаптарының сақтандырушының кiнәсiне байланысты орындалмауынан болған жағдайда, сақтандырушы сақтанушының төлеген сақтандыру сыйлықақысын не сақтандыру жарналарын оған толық қайтаруға мiндеттi.
Ескерту. 842-бап жаңа редакцияда - ҚР 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз) Заңымен.
843-бап. Сақтандыру шартының жарамсыздығы
1. Мәмiлелер жарамсыздығының осы Кодексте көзделген жалпы негiздерiнен басқа, сақтандыру шарты, егер:
1) соттың заңды күшіне енген тиісті шешімі негізінде тәркілеуге жататын мүлік не қылмыстық жолмен табылған немесе қылмыстық құқық бұзушылық нысанасы болып табылатын мүлік сақтандыру объектісі болып табылса;
2) сақтандыру жағдайы ретiнде осы Кодекстiң 3-тармағында817-бабының көзделген белгiлерден айырылған оқиға көзделсе;
3) шарт талаптары сақтандыру жағдайы басталған кезде сақтандыру төлемін жүзеге асыру мүмкіндігін болғызбаса;
4) сақтанушы шарт жасасу кезiнде құқыққа сыйымсыз, оның iшiнде сақтандыру жағдайы басталғаннан кейін шарт жасасу арқылы пайда табуды көрінеу мақсат еткен болса;
5) сақтанушының (сақтандырылушының, пайда алушының) сақтандыру мүддесі болмаса;
6) тараптар арасында шарттың осы Кодекстің 1-тармағында826-бабының көзделген елеулі талаптары туралы келісім болмаса, жарамсыз деп танылады.
2. Сақтандыру шарты мына жағдайларда: 1) егер құқыққа қайшы мүліктік мүдделер сақтандыру (қайта сақтандыру)
объектiсi болса (осы Кодекстің 2-тармағы, 1-тармағының807-бабының 824-бабы үшінші бөлігі);
2) сақтандырылған адамның келiсiмiн алу мiндеттi болып табылатын жағдайларда оның келiсiмi болмаса;
3) шарттың жазбаша нысаны сақталмаса (осы Кодекстің 3-825-бабының тармағы);
4) сақтандыру (қайта сақтандыру) объектісі болмаса, маңызсыз болады. 3. Қазақстан Республикасының заңнамалық актілерінде сақтандырудың
жекелеген түрлерiне қатысты шартты жарамсыз деп танудың өзге де негiздерi көзделуi мүмкiн.
Ескерту. 843-бапқа өзгерістер енгізілді - ҚР 2006.02.20 N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 03.07.2014 № 227-V (01.01.2015 бастап
қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.07.2018 № 166-VІ ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
844-бап. Сақтандыру шартын жарамсыз деп танудың салдары
1. Сақтандыру шарты жарамсыз деп танылған жағдайда сақтандырушы сақтанушыға одан алған сақтандыру сыйлықақыларын не сақтандыру жарналарын қайтаруға, ал сақтанушы (пайда алушы) сақтандырушыға одан алған сақтандыру төлемiн қайтаруға мiндеттi.
Егер шарт сақтанушының заңсыз iс-әрекеттерiнiң салдарынан туындаған негіздер бойынша жарамсыз деп танылса, ол туралы сақтандырушы шарт жасалған кезде, оны орындау процесiнде де бiлмесе және бiлуге тиiстi болмаса, сақтандырушы шыққан шығындарды шегере отырып, сақтанушыға шарттың аяқталмаған мерзiмi үшiн сақтандыру сақтандыру сыйлықақыларын не сақтандыру жарналарын қайтарады, ал егер сақтандыру төлемi жүргiзiлген жағдайда оның төленген соманы қайтаруды талап етуге құқығы бар.
Сақтандырушыға сақтандыру төлемiнен бас тартуда негiз беретiн себептер бойынша сақтандыру шарты жарамсыз деп танылған жағдайда (осы Кодекстiң 839-бабы) нақ сондай салдар туындайды.
2. Егер сақтандыру шарты қылмыстық мақсатқа жетуге бағытталса, оның құқыққа қайшылығы сот үкімімен (қаулысымен) белгіленсе, онда осы Кодекстiң 157-1-бабының 5-7-тармақтарында көзделген салдарлар туындайды.
Ескерту. 844-бапқа өзгерістер енгізілді - ҚР 2000.12.18. N 128 Заңымен; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
845-бап. Өзара сақтандыру
1. Азаматтар мен заңды тұлғалар қажеттi қаражатты өзара сақтандыру қоғамдарына бiрiктiру жолымен өзара негiзде осы Кодекстің 1-807-бабының тармағында аталған өзінің мүліктік мүдделерін сақтандыра алады.
2. Өзара сақтандыру қоғамдары өз мүшелерінің мүлiктiк мүдделерiн сақтандыруды жүзеге асырады және коммерциялық емес ұйымдар болып табылады.
Өзара сақтандыруды жүзеге асырудың, өзара сақтандыру қоғамдарының құқықтық жағдайының ерекшелiктерi мен олардың қызметiнiң шарттары осы Кодекске және өзара сақтандыру туралы заң актiлерiне сәйкес айқындалады.
3. Өзара сақтандыру қоғамдары өз мүшелерiнiң мүлiктiк мүдделерiн сақтандыруды мүшелiк және сақтандыру шарттары негiзiнде жүзеге асырады.
4. Өзара сақтандыру жолымен мiндеттi сақтандыруды жүзеге асыруға өзара сақтандыру туралы заң актiлерiнде көзделген жағдайларда жол берiледi.
5. алып тасталды Ескерту. 845-бапқа өзгерту енгізілді - Қазақстан Республикасының 2006.02.20
. N 128 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2006.07.05. N 164 Заңдарымен.
845-1-бап. Исламдық сақтандыру
1. Қазақстан Республикасының сақтандыру ісі және сақтандыру қызметі туралы заңнамасында белгіленген ерекшеліктер ескеріле отырып жасалған сақтандыру шарты (осы Кодекстің 803-бабы) исламдық сақтандыру шарты болып табылады.
2. Сақтандырушы исламдық сақтандыру шарты бойынша сақтанушы төлеген сақтандыру сыйлықақысын, сондай-ақ сақтандыру сыйлықақыларын инвестициялау нәтижесінде алынған кірістерді сақтандырушы исламдық сақтандыру шарттары бойынша сақтанушыларға (пайда алушыларға) сақтандыру төлемдерін жүзеге асыру үшін қалыптастыратын исламдық сақтандыру қорына аударуға тиіс.
3. Сақтандырушы исламдық сақтандыру шарты бойынша алған сақтандыру сыйлықақылары, сондай-ақ исламдық сақтандыру қорын құрайтын өзге де мүлік сақтандырушыға меншік құқығымен тиесілі болмайды.
4. Сақтандырушы исламдық сақтандыру шарты бойынша Қазақстан Республикасының сақтандыру ісі және сақтандыру қызметі туралы заңнамасында белгіленген талаптарға және жасалған исламдық сақтандыру шартына сәйкес исламдық сақтандыру қорының қаражаты есебінен исламдық сақтандыру қорын басқарғаны үшін сыйақы алуға құқылы.
5. Исламдық сақтандыруды жүзеге асырудың, исламдық сақтандыру қорын қалыптастырудың, есепке алудың, пайдаланудың және бөлудің, исламдық сақтандыруды жүзеге асыратын сақтандырушылардың құқықтық жағдайының ерекшеліктері және олардың қызмет ету шарттары осы Кодекс пен Қазақстан Республикасының сақтандыру ісі және сақтандыру қызметі туралы заңнамалық актілеріне сәйкес айқындалады.
Ескерту. 40-тарау 845-1-баппен толықтырылды - ҚР 27.04.2015 № 311-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
41-тарау. Тапсырма
846-бап. Тапсырма шарты
1. Тапсырма шарты бойынша бiр тарап (сенiм бiлдiрiлген өкiл) екiншi тараптың (сенiм бiлдiрушiнiң) атынан және соның есебiнен белгiлi бiр заңды iс-әрекет жасауға мiндеттенедi. Сенім білдірілген өкiл жасаған мәмiле бойынша құқықтар мен мiндеттер тiкелей сенiм бiлдiрушiде пайда болады.
2. Тапсырма шарты жазбаша нысанда жасалады.
847-бап. Тапсырманы сенiм бiлдiрушiнiң нұсқауларына сәйкес орындау
1. Сенiм бiлдiрiлген өкiл өзiне берiлген тапсырманы сенiм бiлдiрушiнiң нұсқауларына сәйкес орындауға мiндеттi. Сенiм бiлдiрушiнiң нұсқаулары нақтылы, заңды және жүзеге асырыла алатын болуы тиiс.
2. Егер iстiң мән-жайы бойынша ол сенiм бiлдiрушiнiң мүдделерi үшiн қажет болса және сенiм бiлдiрiлген өкіл сенiм бiлдiрушiден алдын ала сұрай алмаса не өзiнiң сауалына дер кезiнде жауап алмаса, сенiм бiлдiрiлген өкiл сенiм бiлдiрушiнiң нұсқауларынан бас тартуға құқылы. Бұл жағдайда сенiм бiлдiрiлген өкiл, хабарлау мүмкiн болысымен жол берiлген ауытқулар туралы сенiм бiлдiрушiнi хабардар етуге мiндеттi.
3. Тараптардың келiсуiмен коммерциялық өкiл осы баптың 2-тармағында көзделген мiндеттердi орындаудан босатылуы мүмкiн.
848-бап. Сенiм бiлдiрiлген өкiлдiң мiндеттерi
Сенiм бiлдiрiлген өкiл: 1) өзiне берiлген тапсырманы өзi орындауға;
2) сенiм бiлдiрушiге оның талап етуi бойынша тапсырманың орындалу барысы туралы барлық мәлiметтердi хабарлауға;
3) сенiм бiлдiрушiге жасалған мәмiле бойынша алынғандардың бәрiн дереу берiп отыруға;
4) тапсырманы орындаған соң қолдану мерзiмi аяқталмаған сенiмхатты кешiктiрмей сенiм бiлдiрушiге қайтаруға және егер ол тапсырманың сипаты бойынша талап етiлетiн болса, ақтайтын құжаттарды қоса отырып есеп беруге;
5) Қазақстан Республикасының заңнамалық актілерінде көзделген өзге де міндеттерді орындауға мiндеттi.
Ескерту. 848-бапқа өзгерту енгізілді - ҚР 2010.07.15 № 338-IV (қолданысқа енгізілу тәртібін 2-б. қараңыз) Заңымен.
849-бап. Сенiм бiлдiрушiнiң мiндеттерi
1. Сенім бiлдiрушi, егер шартта өзгеше көзделмесе: 1) сенiм бiлдiрiлген өкiлдi тапсырманы орындау үшiн қажеттi қаражатпен
қамтамасыз етуге; 2) сенiм бiлдiрiлген өкiлдiң тапсырманы орындау үшiн қажет болған
шығындарының орнын толтыруға мiндеттi. 2. Сенiм бiлдiрушi шартқа сәйкес сенiм бiлдiрiлген өкiл орындағанының
барлығын кешiктiрмей қабылдауға мiндеттi. 3. Сенiм бiлдiрушi тапсырманың орындалуы бойынша сенiм бiлдiрiлген
өкiлге осы Кодекстiң 850-бабының ережелерiне сәйкес сыйақы төлеуге мiндеттi. 4. Қазақстан Республикасының заңнамалық актілерінде сенiм бiлдiрушiнің
өзге де міндеттері көзделуі мүмкін. Ескерту. 849-бапқа өзгерту енгізілді - ҚР 2010.07.15 № 338-IV (қолданысқа
енгізілу тәртібін 2-б. қараңыз) Заңымен.
850-бап. Тапсырма шартындағы сыйақы
1. Егер заң актiлерiнде немесе шартта көзделген болса, сенiм бiлдiрушi сенiм бiлдiрiлген өкiлге сыйақы төлеуге мiндеттi.
Егер тапсырма шарты тараптардың екеуiнiң немесе олардың бiрiнiң кәсiпкерлiк қызметтi жүзеге асыруына байланысты болса, шартта өзгеше көзделмесе, сенiм бiлдiргiшi сенiм бiлдiрiлген өкiлге сыйақы төлеуге мiндеттi.
2. Егер шартта немесе заң актiлерiнде шартты орындаудың өтелуi көрсетiлсе, бiрақ сыйақының мөлшерi көрсетiлмесе, онда ол осыған ұқсас қызметтер үшін әдетте қабылданған баға ескеріле отырып айқындалады.
3. Сенiм бiлдiрiлген өкiл барлық талап етiлген iс-әрекеттердi тиiстi түрде атқарғанын, бiрақ тапсырма оның кiнәсiнсiз орындалмай қалғанын дәлелдеген кезде сыйақы төленуге тиiс.
851-бап. Сенiм ауысуы
1. Сенiм бiлдiрiлген өкiл, егер бұл шартта көзделген болса не сенiм бiлдiрiлген өкiл осыған сенiм бiлдiрушiнiң мүдделерiн қорғау мақсатындағы мән-жайлармен мәжбүр болса, тапсырманы орындауды басқа адамға ( орынбасарға) беруге құқылы.
2. Орындау сенiмiн басқа адамға ауыстырған бойда сенiм бiлдiрiлген өкiл бұл туралы сенiм бiлдiрушiге дереу хабарлауға тиiс. Сенiм бiлдiрушi, шартта мұндай
орынбасар атап көрсетiлетiн жағдайларды қоспағанда, сенiм бiлдiрiлген өкiл таңдаған орынбасардан бас тартуға құқылы.
3. Егер сенiм бiлдiрiлген өкiлдiң орынбасары шартта атап айтылған болса, сенiм бiлдiрiлген өкiл өзiнiң орынбасары жүргiзген iс үшiн жауап бермейдi.
4. Егер орынбасардың iс жүргiзуi шартта көзделсе, бiрақ онда орынбасардың аты атап көрсетiлмесе, сенiм бiлдiрiлген өкiл өзiнiң орынбасарының кiнәлi iс-әрекетi үшiн жауап бермейдi.
5. Егер орынбасардың iс жүргiзуi шартта көзделмесе, сенiм бiлдiрiлген өкiл өз орынбасарының кез келген iс-әрекетi үшiн жауап
береді.
852-бап. Тапсырма шартын тоқтату
1. Тапсырма шарты міндеттердi тоқтатудың жалпы негiздерiмен қатар: 1) сенiм бiлдiрушiнiң тапсырманы ауыстыруы; 2) сенiм бiлдiрiлген өкiлдiң бас тартуы;
3) сенiм бiлдiрушiнiң немесе сенiм бiлдiрiлген өкiлдiң қайтыс болуы, олардың бiреуiн әрекетке қабiлетсiз, әрекетке қабiлетi шектеулi немесе хабарсыз кеттi деп танудың салдарынан тоқтатылады.
2. Егер сенiм бiлдiрiлген өкiл тапсырма шартының тоқталғаны туралы бiлмесе және бiлуге тиiс болмаса, онда сенiм бiлдiрушiнiң нұсқауы бойынша жасалған оның iс-әрекетi сенiм бiлдiрушiнi (оның құқықтық мирасқорын) үшiншi тұлғаға және сенiм бiлдiрiлген өкiлге қатысты мiндеттейдi.
3. Сенiм бiлдiрiлген өкiлмен жасалған шарттан бас тартқан, кәсiптер ретiнде iс-әрекет жасайтын тарап, егер шартта бұдан да ұзақ мерзiм көзделмесе, екiншi тарапқа шарттың тоқтатылғаны туралы бiр ай көлемiнде хабарлауы тиiс.
853-бап. Тапсырма шартын тоқтатудың зардабы
1. Егер тапсырма шарты сенiм бiлдiрiлген өкiл тапсырманы толық орындағанға дейiн тоқтатылған болса, сенiм бiлдiрушi сенiм бiлдiрiлген өкiлдiң тапсырманы орындау кезiнде шыққан шығынын төлеуге, сенiм бiлдiрiлген өкiлге сыйақы тиесiлi болған жағдайда, оның орындаған жұмысының көлемiне мөлшерлес сыйақы төлеуге мiндеттi. Сенiм бiлдiрiлген өкiл тапсырманы оның тоқтатылғаны туралы бiлген соң немесе бiлуi тиiс болғанда орындаған болса, бұл ереже қолданылмайды.
2. Сенiм бiлдiрушiнiң тапсырманы өзгертуi, кәсiпкер ретiнде iс-әрекет жасайтын сенiм бiлдiрiлген өкiлмен шарт тоқтатылған жағдайларды қоспағанда, сенiм бiлдiрiлген өкiлге шарттың тоқтатылуымен келтiрiлген залалдардың өтелуi үшiн негiз болып табылмайды.
3. Сенiм бiлдiрiлген өкiлдiң сенiм бiлдiрушiнiң тапсырмасын орындаудан бас тартуы, сенiм бiлдiрiлген өкiлдiң сенiм бiлдiрушi өз мүдделерiн өзгеше қамтамасыз ету мүмкiндiгiнен айрылған кезде бас тартуы жағдайларын, сондай-ақ кәсiпкер ретiнде қызмет жасайтын сенiм бiлдiрiлген өкiлдiң шартты тоқтатуы жағдайларын қоспағанда, шарттың тоқтатылуынан сенiм бiлдiрушiге келтiрiлген залалдардың орнын толтыру үшiн негiз болып табылмайды.
854-бап. Тапсырма шартындағы құқықтық мирасқорлық
1. Сенiм бiлдiрiлген өкiл қайтыс болған жағдайда оның мұрагерлерi немесе мұрагерлiк мүлiктiң сақталуын қамтамасыз ету жүктелген өзге де тұлғалар сенiм бiлдiрушiге тапсырма шартының тоқтатылғандығы туралы хабарлауға және сенiм бiлдiрушiнiң мүлкiн қорғау үшiн қажеттi шаралар қолдануға, атап айтқанда , сенiм бiлдiрушiнiң заттарын, сондай-ақ құжаттарын сақтауға және бұдан соң оларды өзiне беруге мiндеттi.
Сенiм бiлдiрiлген өкiл болып саналатын заңды тұлғаның таратушысына да нақ осындай мiндет жүктеледi.
2. Өкiл ретiнде iс-әрекет ететiн заңды тұлғаны қайта құру кезiнде, сенiм бiлдiрушi бұл туралы осы Кодекстiң 48-бабына сәйкес дереу хабардар етiлуге тиiс. Аталған жағдайда мұндай заңды ұйымның құқықтары мен мiндеттерi, егер сенiм бiлдiрушi өзiнiң шарттан бас тартқандығы туралы қисынды мерзімде хабарламаса, оның құқықтық мирасқорына ауысады.
42-тарау. Басқаның мүддесіне тапсырмасыз іс-әрекет жасау
855-бап. Басқаның мүддесiне iс-әрекет жасау талаптары
1. Мүдделi тұлғаның тапсырмасынсыз, өзге де нұсқауынсыз немесе алдын ала уәде берiлген келiсiмiнсiз оның жеке басына немесе мүлкiне зиян келтiрiлуiн болдырмау, оның мiндеттемесiн орындау немесе оның өзге де заңға қарсы емес мүдделерi (басқаның мүддесi үшiн iс-әрекет жасау) мақсатындағы iс-әрекеттер iстiң мән-жайлары бойынша қажеттi қамқорлықпен және сақтықпен, мүдделi тұлғаның айқын олжасына немесе пайдасына және iс жүзiндегi немесе ықтимал ниеттерiне сүйенiп жасалуы тиiс.
2. Осы тарауда көзделген ережелер осындай iс-әрекеттер олардың қызмет мақсаттарының бiрi болып табылатын мемлекеттiк органдар басқаның мүддесiне жасайтын iс-әрекеттерге қолданылмайды.
856-бап. Мүдделi тұлғаға оның мүддесiне жасалған iс-әрекеттер туралы хабарлау
1. Басқаның мүддесiне iс-әрекеттер жасайтын тұлға алғашқы мүмкiндiк туған жағдайда мүдделi тұлғаға бұл туралы хабарлауға және, егер күту тек мүдделi тұлғаға айтарлықтай зиян келтiрiлмейтiн болса, қисынды мерзiмнiң iшiнде жасалған iс-әрекеттердi мақұлдайтындығы туралы немесе мақұлдамайтындығы туралы шешiмдi күтуге мiндеттi.
2. Егер бұл iс-әрекеттер оның қатысуымен жасалса, мүдделi азаматқа оның мүддесiне жасалған iс-әрекеттер туралы арнайы хабарлау талап етiлмейдi.
857-бап. Мүдделi тұлғаның өз мүддесiне жасалған iс-әрекеттердi мақұлдауының салдары
Егер оның тапсыруынсыз өзiнiң мүддесiне iс-әрекеттер жасалған тұлға осы iс-әрекеттердi мақұлдаса, тiптi мақұлдау ауызша түрде жасалса да, тараптардың қатынасында бұдан әрi жасалатын iс-әрекеттердiң сипатына сәйкес тапсырма шарты немесе өзге де шарт туралы ережелер қолданылады.
858-бап. Мүдделi тұлғаның өз мүддесi үшiн жасалған iс-әрекеттердi мақұлдамауының салдары
1. Іс-әрекеттер жасаған тұлға оларды мүдделi тұлғаның мақұлдамағандығы белгiлi болған соң жасаған бөтен мүдделердегі iс-әрекеттер осы iс-әрекеттер жасаған тұлғаға қатысты да, үшiншi бiр тұлғаға қатысты да соңғысына мiндеттер жүктемейдi.
2. Қатерге ұшыраған адамның өмiрiне төнген қауiптi жою мақсатындағы iс-қимылға осы адамның еркiне қарсы, ал бiреудi асырау жөнiндегi мiндеттердi орындауға - осындай мiндетi бар тұлғаның еркiне қарсы жол берiледi.
859-бап. Басқаның мүддесiне iс-әрекет жасаған адамға залалдарын өтеу
1. Осы тарауда көзделген ережелерге сәйкес басқаның мүддесiне іс-әрекет жасаған тұлғаға келтiрiлген қажеттi шығындар мен өзге де нақты зиянды, осы Кодекстiң 858-бабының 1-тармағында көрсетiлген iс-әрекеттерден туындаған шығындарды қоспағанда, мүдделi адам өтеуге тиiс.
Басқаның мүддесiне жасалған iс-әрекеттер болжанған нәтижеге жеткiзбеген жағдайда да қажеттi шығындар мен өзге де нақты зиянды өтеу құқығы сақталады . Алайда басқа тұлғаның мүлкiне залал келтiрудi болдырмау жағдайында өтеу мөлшерi мүлiктiң құнынан аспауы тиiс.
2. Басқаның мүддесiне iс-әрекеттер жасаған тұлғаға мүдделi тұлғаның мақұлдауын алған соң жасаған iс-әрекеттерге байланысты келтiрiлген шығындары мен өзге де залалдар (осы Кодекстiң 857-бабы) тиiстi түрдегi шарт туралы ережелер бойынша өтеледi.
860-бап. Басқаның мүддесiне жасалған iс-әрекеттер үшiн сыйақы
Егер мұндай құқық заң актiлерiнде, мүдделi тұлғамен жасалған келісімде немесе іскерлік айналым дағдысында көзделсе, басқаның мүддесiне жасалған iс-әрекеттерi мүдделi тұлға үшiн оң нәтижеге жеткiзген тұлға сыйақы алуға құқылы.
861-бап. Басқаның мүддесiне мәмiле жасау салдары
Басқаның мүддесiне жасалған мәмiле бойынша мiндеттер, ол осы мәмiленi мақұлдаған жағдайда және басқа тарап мұндай ауысуға қарсы болмаса не мәміле жасаған кезде мәміле басқаның мүддесіне жасалғандығын бiлген болса немесе бiлуi тиiс болса, мүддесiне мәмiле жасалған адамға ауысады.
Мәмiле бойынша мiндеттер мүддесiне осы мәмiле жасалған адамға ауысқан кезде, соңғысына осы мәмiле бойынша құқықтар да берiлуге тиiс.
862-бап. Басқаның мүддесiне iс-әрекеттер жасаудың салдарынан негiзсiз баю
Егер басқа адамның мүдделерiн қамтамасыз етуге тiкелей бағытталмаған іс-әрекеттер, оның ішінде оны жасаған адам өз мүддесіне іс-әрекет жасағанын қате болжаған жағдайда да, басқа адамның негiзсiз баюына әкеп соқса, осы Кодекстiң 48-тарауында көзделген ережелер қолданылады.
863-бап. Басқаның мүддесiне жасалған iс-әрекеттермен келтiрiлген зиянды өтеу
Басқаның мүддесiне жасалған iс-әрекеттермен келтiрiлген зиянды мүдделi адамға немесе үшiншi бiр адамдарға өтеу жөнiндегi қатынастар осы Кодекстiң 47 -тарауында көзделген ережелермен реттеледi.
864-бап. Басқаның мүддесiне iс-әрекеттер жасаған адамның есеп беруi
Басқаның мүддесiне iс-әрекеттер жасаған адам мүддесiне iс-әрекеттер жасалған адамға, түскен кiрiстер мен жасалған шығындарды және өзге де залалдарды көрсетiп есеп беруге мiндеттi.
43-тарау. Комиссия
865-бап. Комиссия шарты
1. Комиссия шарты бойынша бiр тарап (комиссионер) екiншi тараптың ( комитент) тапсыруы бойынша сыйақы үшiн комитент есебiнен өз атынан бiр немесе бiрнеше мәмiле жасауға мiндеттенедi.
2. Комиссия шарты жазбаша нысанда жасалуы тиiс.
866-бап. Комиссиялық сыйақы
Комитент комиссионерге сыйақы төлеуге, ал осы тараудың 868-бабының 2- тармағында көзделген жағдайда шартта белгiленген мөлшерде қосымша сыйақы төлеуге де мiндеттi. Егер шартта бұл мөлшер көзделмесе және оның талаптарының негiзiнде оны белгiлеу мүмкiн болмаса, сыйақының мөлшерi осы Кодекстiң 385-бабының 3-тармағына сәйкес белгiленедi.
Егер комиссия шарты комитентке байланысты себептермен орындалмаса, комиссионер комиссиялық сыйақы алу, сондай-ақ шыққан шығындарының орнын толтыру құқығын сақтап қалады.
867-бап. Комиссионердiң үшiншi тұлғамен мәмiле жасау жөнiндегi құқықтары мен мiндеттерi
1. Комитенттiң мәмiледе аты аталса немесе үшiншi тұлғамен мәмiле бойынша тiкелей қатынастарға кiрсе де, комиссионердiң үшiншi тұлғамен жасаған мәмiлесi бойынша комиссионер құқықтар иеленедi және мiндеттi болады.
Комиссионер үшінші тұлғамен мәміле жасасқаны туралы комитентті хабардар етуге міндетті.
2. Комитенттiң талабы бойынша комиссионер мәмiле жасалған үшiншi тұлғаны құқықтарды бергенi туралы ескерте отырып, осындай мәмiле бойынша оған құқықтар беруге мiндеттi. Соңғысының комиссионерге осы мәмiледен туындайтын өз талаптарының негiзiнде комитент талаптарына қарсылық бiлдiруге құқығы жоқ.
Ескерту. 867-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
868-бап. Комиссиялық тапсырманы орындау
1. Комиссионер үшiншi адаммен жасаған мәмiледен туындайтын барлық мiндеттерiн орындауға және барлық құқықтарды жүзеге асыруға тиiс.
2. Комиссионер өзiне алған тапсырманы комитенттiң нұсқауларына сәйкес орындауға, ал шартта мұндай нұсқаулар болмаған кезде - іскерлік айналымының дағдыларына немесе әдетте комитент үшiн неғұрлым тиiмдi жағдайларда қойылатын өзге де талаптарға сәйкес орындауға мiндеттi. Егер комиссионер мәмiленi комитент көрсеткеннен гөрi тиiмдi жағдайлар бойынша жасаған болса, түскен олжа, шартта өзгеше көзделмесе, тараптарға тең бөлiнедi.
3. Комиссионер комитент есебiнен жасаған мәмiленi үшiншi тұлғаның орындамағаны үшiн, осы тұлғаны таңдауда комиссионер тиісті сақтық көрсетпеген не мәміленің орындалу кепілдігін өз мойнына алған (делькредере) жағдайларды қоспағанда, комитент алдында жауап бермейдi.
4. Комиссионермен жасалған мәмілені үшінші тұлға бұзған жағдайда комиссионер бұл туралы дереу комитентке хабарлауға және қажеттi дәлелдердi жинау мен қамтамасыз етуге мiндеттi.
5. Комиссионермен жасалған мәмiленi үшiншi тұлғаның бұзғандығы туралы хабарландырылған комитенттiң осындай мәмiле бойынша комиссионердiң ол адамға қойған талаптарын өзiне берудi талап етуге құқығы бар.
869-бап. Қосалқы комиссия
1. Комиссионер қосалқы комиссионердiң iс-әрекетi үшiн комитент алдында жауапты бола отырып, егер шартта өзгеше көзделмесе, басқа тұлғамен қосалқы комиссия шартын жасасуға құқылы.
Қосалқы комиссия шарты бойынша комиссионер, осы Кодекстiң 867- бабының 2-тармағында көзделген құқықтарды қоспағанда, қосалқы комиссионерге қатысты комитенттiң құқықтары мен мiндеттерiн иеленедi.
Заң қандай да бiр мәмiлелердi тек уәкiлдiк берiлген адамдармен ғана жасауға жол беретiн жағдайларда қосалқы комиссия шарты тек осындай тұлғамен жасалуы мүмкiн.
2. Комиссия шарты тоқтағанға дейiн, егер комитент комиссионермен жасаған шартта өзгеше көзделмесе, комитенттiң қосалқы комиссионермен тiкелей қатынас жасауға құқығы жоқ.
870-бап. Комитенттiң нұсқауларынан ауытқу
1. Комиссионердiң осы Кодекстiң 847-бабының 2-тармағында көзделген жағдайларда комитенттiң нұсқауларынан ауытқуға құқығы бар.
2. Мүлiктi комитентпен келiскен бағадан төмен сатқан комиссионер, егер ол мүлiктi келiсiлген бағамен сатуға мүмкiндiк болмағанын және неғұрлым төмен
бағамен сату бұдан да көп залалдан сақтағанын, сондай-ақ оның нұсқауларынан ауытқуға комитенттiң алдын ала келiсiмiн алуға мүмкiндiгi болмағанын дәлелдей алмаса, комитентке айырманы өтеуге мiндеттi.
3. Егер комиссионер мүлікті комитентпен келісілгеннен жоғары бағамен сатып алса, мұндай затты қабылдағысы келмейтiн комитент үшiншi тұлғамен мәмiле жасалғандығы туралы хабар алған бойда бұл жөнiнде комиссионерге кешiктiрмей мәлiмдеуге мiндеттi. Олай болмаған жағдайда комитент сатып алынған затты қабылдады деп танылады.
Егер комиссионер баға айырмасын өз есебiне алатынын хабарласа, комитенттің өзі үшін жасалған мәміледен бас тартуға құқығы жоқ.
871-бап. Комиссияның нысанасы болып табылатын мүлiкке құқық
1. Комиссионерге комитенттен келiп түскен не комиссионер комитенттiң есебiнен сатып алған мүлiк комитенттiң меншiгi болып табылады.
2. Комиссионер жасасқан мәмiле бойынша комитентке не үшiншi тұлғаға берiлуге тиiс мүлiктi комиссионер комиссия шарты бойынша өзiне тиесiлi сома төленгенге дейiн ұстап қалуға құқылы.
872-бап. Комиссионердiң өзiне тиесiлi соманы ұстап қалуы
Комиссионер комитенттiң есебiнен түскен барлық соманың iшiнен комиссияның шарты бойынша өзiне тиесiлi соманы ұстап қалуға құқылы. 873-бап. Комиссионердiң жауаптылығы
Ескерту. 873-баптың тақырыбы жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1. Комиссионер өзiндегi комитент мүлкiнiң жоғалуына, кем шығуына немесе бүлiнуiне ұшыратқан әрбiр қателiгi үшiн комитент алдында жауап бередi.
2. Егер комиссионердiң комитент жiберген мүлікті не комитентке арнап комиссионерге келiп түскен мүлiктi қабылдауы кезiнде бұл мүлiктi сырттай қараған кезде бүлiну немесе өзге де ақаулар байқалған болса, сондай-ақ комиссионердегi комитенттiң мүлкiне бiреулер зиян келтiрген жағдайда, комиссионер комитенттiң құқығын қорғау шараларын қолдануға, қажеттi айғақтар жинауға және осылар туралы комитентке дереу хабарлауға мiндеттi. Аталған шарттар орындалған жағдайда комиссионер комитенттiң шеккен залалдары үшiн жауап бермейдi.
3. Комиссионер өз қарауында тұрған комитенттiң мүлкiн сақтандырмаған болса, бұл үшiн комитент оған мүлiктi сақтандыруды тапсырған немесе мүлiктi сақтандыру заң бойынша мiндеттi болған жағдайларда ғана жауап бередi.
4. Комиссионер үшінші тұлғамен мәміле бойынша міндеттемелерді орындамағаны үшін Қазақстан Республикасының заңдарында көзделген жауаптылықта болады.
5. Комиссионердің үшінші тұлғамен мәміле бойынша өз міндеттерін орындамауынан туындаған шығыстар комиссионердің есебінен жабылады.
Ескерту. 873-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
874-бап. Өзiне мәмiле жасау
1. Егер комитент өзгеше талап қоймаса, комиссия шартын комиссионер оның өзi сатып алуға тиiс тауарды сатушы ретiнде өзi ұсыну немесе өзi сатуға тиiс тауарды сатып алушы ретiнде өзi қабылдау арқылы жүзеге асыруы мүмкiн.
2. Сатушы ретiнде өз бетiнше тауар ұсынған немесе оны сатып алушы ретiнде қабылдаған комиссионердiң жай комиссиялық ақы алуға құқығы бар және комиссиялық мәмiлелерден туындайтын шығындардың орнын толтыру жөнiнде шот ұсына алады.
875-бап. Комитенттiң комиссия шарты бойынша орындалғанды қабылдауы
Комитент: 1) комиссионерден шарт бойынша барлық орындалғанды қабылдауға;
2) өзi үшiн комиссионер сатып алған мүлiктi қарауға және осы мүлiкте байқалған кемшiлiктер туралы оған дереу хабарлауға;
3) комиссионердi комиссиялық тапсырманы орындау жөнiнде үшiншi тұлға алдында қабылдаған мiндеттемелерден босатуға мiндеттi.
876-бап. Комиссиялық тапсырманы орындау жөнiндегi шығындардың орнын толтыру
1. Комитент комиссиялық сыйақы, ал тиiстi жағдайларда делькредере үшiн қосымша сыйақы төлеуден басқа, тапсырманы орындау барысында комиссионер жұмсаған сомалардың орнын толтыруға мiндеттi.
2. Егер заң актiлерiнде немесе шартта өзгеше белгiленбесе, комиссионердiң өзiндегi комитент мүлiктерiн сақтау жөнiндегi шығындардың орнын толтыруға құқығы жоқ.
877-бап. Комитенттiң тапсырманың күшiн жоюы
Комитент комиссионерге берген тапсырманың кез келген уақытта күшiн жоюға құқылы. Бұл орайда комиссионердiң тапсырманың күшiн жоюдан шеккен залалдары жалпы негiздерде өтеледi.
Тапсырманың күшi жойылған жағдайда комитент тапсырманың күшi жойылған кезден бастап бiр айдың iшiнде, егер шартта өзге мерзiм белгiленбесе, комиссионердегi мүлiкке билiк етуге мiндеттi. Егер комитент бұл мiндеттi орындамаса, комиссионер не мүлiктi сақтау үшiн өткiзуге, не оны комитент үшiн неғұрлым тиiмдi бағамен сатуға құқылы.
878-бап. Комиссионердiң тапсырманы орындаудан бас тартуы
1. Егер шартта өзгеше көзделмесе, комитенттiң өз мiндеттерiн бұзуы тапсырманы комитенттің нұсқауларына сәйкес орындаудың мүмкiн болмауына әкеп соғатын немесе атқарудың мүмкiн болмауы комиссионер жауап бермейтін өзге де жағдайлардың салдарынан туындаған жағдайларды қоспағанда, комиссионердің өзiне алған тапсырманы орындаудан бас тартуға құқығы жоқ.
Комиссионер өзiнiң бас тартуы туралы комитентке жазбаша хабарлауға және өзіндегі комитент мүлкінің сақталуына шаралар қолдануға мiндеттi.
Комиссионердiң тапсырманы орындаудан бас тартқандығы туралы хабардар етiлген комитент, егер шартта өзге мерзiм белгiленбесе, бас тартуды алған күннен бастап бiр айдың iшiнде комиссионердегi мүлiкке билiк етуге мiндеттi. Егер ол бұл мiндеттi орындамаса, комиссионер мүлiктi сақтауға өткiзуге не комитент үшiн мүмкiндiгiнше тиiмдi бағамен сатуға құқылы.
2. Комитенттiң өз мiндеттерiн бұзуы салдарынан тапсырманы орындаудан бас тартқан комиссионердiң комиссиялық сыйақыға, сондай-ақ шыққан шығындардың орнын толтыруға құқығы сақталады.
879-бап. Комиссия шартын тоқтату
1. Комитент комиссия шартында көзделген барлық тапсырмалардың күшiн жойған жағдайда, шарт тоқталады.
2. Комиссия шарты жалпы негiздермен қатар: 1) комиссионердiң шартты орындаудан бас тартуының; 2) комиссионердiң қайтыс болуы, оны әрекетке қабiлетсiз, әрекетке қабiлетi
шектеулi, хабар-ошарсыз кеткен немесе дәрменсiз (банкрот) деп танудың салдарынан тоқтатылады.
880-бап. Комитенттiң мерзiмi көрсетiлмей жасалған шарттан бас тартуы
Комитенттiң мерзiмi көрсетiлмей жасалған комиссия шартынан, егер шартта хабарлаудың бұдан да ұзақ мерзiмi көзделмесе, бас тарту туралы комиссионерге бiр айдан кешiктiрмей хабарлап, кез келген уақытта бас тартуға құқығы бар.
Бұл жағдайда комитент комиссионерге шарт тоқтатылғанға дейін ол жасаған мәмiлелер үшiн сыйақы төлеуге, сондай-ақ комиссионерге шарт тоқтатылғанға дейін ол шеккен шығындардың орнын толтыруға мiндеттi.
881-бап. Комиссионердiң мерзiмi көрсетiлмей жасалған шарттан бас тартуы
1. Комиссионердiң мерзiмi көрсетiлмей жасалған комиссия шартынан, егер шартта хабарлаудың бұдан да ұзақ мерзiмi көзделмесе, бас тарту туралы комитентке бiр айдан кешiктiрмей хабарлап, кез келген уақытта бас тартуға құқығы бар.
Бұл жағдайда комиссионер өзiндегi комитент мүлкiнiң сақталуына шаралар қолдануға міндетті. Комитент шарт тоқтатылған кезге дейiн комиссионердегi мүлiкке билiк етуге мiндеттi. Егер ол бұл мiндеттi орындамаса, комиссионердiң не мүлiктi сақтауға өткiзуге, не комитент үшiн неғұрлым тиiмдi бағамен сатуға құқығы бар.
2. Шарттан бас тартқан комиссионердiң комиссиялық сыйақы алуға және шарт тоқтатылған кезде өзiне тиесiлi шығындардың өтемiн алуға құқығы бар.
882-бап. Комиссия шартындағы құқықтық мирасқорлық
1. Заңды тұлға-комиссионер қайта ұйымдастырылған жағдайда, егер қайта ұйымдастырудың болғаны туралы хабарлама алған күннен бастап бiр айдың iшiнде комитент шартты бұзғаны туралы хабарламаса, оның құқықтары мен мiндеттерi құқықтық мирасқорларына ауысады.
2. Комитент-азамат қайтыс болған, ол әрекетке қабiлетсiз, әрекетке қабiлетi шектеулi, хабар-ошарсыз кеткен деп танылған жағдайда, сондай-ақ заңды тұлға-комитент таратылған жағдайда комиссионер комитенттiң мұрагерлерiнен немесе өкiлдерiнен тиiстi нұсқаулар келiп түскенше өзiне берiлген тапсырманы орындауды жалғастыруға мiндеттi.
44-тарау. Мүлікті сенімгерлікпен басқару
883-бап. Мүлiктi сенiмгерлiкпен басқару ұғымы және оның пайда болу негiздерi
1. Мүлiктi сенiмгерлiкпен басқаруды белгiлеу кезiнде сенiмгер басқарушы, егер шартта немесе заң актiлерiнде өзгеше көзделмесе, өзiнiң иеленуiне, пайдалануына және билiк етуiне берiлген мүлiктi пайда алушының мүддесі үшін өз атынан басқаруды жүзеге асыруға мiндеттенедi.
2. Мүлiктi сенiмгерлiкпен басқару: 1) мәмiле (атап айтқанда, шарт бойынша, өсиеттi орындаушы (сенімгерлікпен
басқарушы) тағайындалған өсиет бойынша); 2) сот актiсi (банкроттық немесе оңалту рәсiмдерiнде банкроттықты немесе
оңалтуды басқарушы тағайындалған, әрекетке қабiлетсiз, хабарсыз кеткен немесе қайтыс болды деп жарияланған азаматтың мүлкiне қорғаншылық белгiленген кезде және Қазақстан Республикасының заңнамалық актілерінде көзделген басқа да жағдайларда);
3) әкімшілік акт (кәмелетке толмаған, қайтыс болған адамның мүлкiне қорғаншылық белгiлеген; кәсiпкер мемлекеттiк қызметке кiрген кезде және заң актiлерiнде көзделген басқа жағдайларда) негiзiнде пайда болады (белгiленедi).
3. Банк қызметін жүзеге асыру кезінде мүлікті сенімгерлікпен басқару ерекшеліктері Қазақстан Республикасының банк қызметін реттейтін заңнамалық актілерінде белгіленеді.
4. Мемлекеттiк мүлiктi сенiмгерлiк басқару ерекшелiктерi Қазақстан Республикасының мемлекеттiк мүлiк, мемлекеттік-жекешелік әріптестік, концессиялар туралы заңнамалық актiлерiнде және Қазақстан Республикасының өзге де заңнамалық актiлерiнде белгiленедi.
Ескерту. 883-бапқа өзгерістер енгізілді - ҚР 2007.01.12 № 225, 2009.02.12 № 133-IV (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2011.03.01 № 414-IV ( алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі); 04.07.2013 № 131-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 № 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 31.10.2015 № 380-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
884-бап. Мүлiктi сенiмгерлiкпен басқару субъектiлерi
1. Меншiк иесi, сондай-ақ өзге де заттық құқық субъектiсi немесе мүлiктi сенiмгерлiкпен басқаруға беруге уәкiлеттi құзыреттi орган құрылтайшы бола алады.
2. Егер заң актiлерiнде өзгеше көзделмесе, кез келген адам сенiмгер басқарушы бола алады.
Сенiмгер басқарушы тек оның келiсiмiмен тағайындалуы мүмкiн. 3. Сенiмгер басқарушы болып табылмайтын кез келген адам, сондай-ақ
мемлекет немесе әкiмшiлiк-аумақтық бөлiнiс пайда алушы (мүддесi үшiн мүлiктi басқару жүзеге асырылатын тұлға) бола алады.
4. Егер заң актiлерiнде немесе мүлiктi сенiмгерлiкпен басқару шартында өзгеше көзделмесе, мүлiктi сенiмгерлiкпен басқару құрылтайшысы пайда алушы болып табылады.
885-бап. Мүлiктi сенiмгерлiкпен басқару объектiлерi
1. Егер заң актiлерiнде өзгеше көзделмесе, ақшаны, бағалы қағаздарды және мүлiктiк құқықтарды қоса алғанда, кез келген мүлiк сенiмгерлiкпен басқару объектiсi бола алады.
2. Сенiп тапсырылған мүлiктi сенiмгер басқарушы өзiне меншiк ( шаруашылық жүргiзу, оралымды басқару) құқығымен тиесiлi мүлiктен бөлек есепке алуға тиiс.
3. Өзiне жүктелген мiндеттердi жүзеге асыру процесiнде сенiм бiлдiрiлген басқарушы сатып алған және (немесе) алған мүлiк сенiп берiлген мүлiк құрамына енгiзiледi.
4. Осы Кодекстiң көзделген, сондай-ақ осы тұлғаның1081-бабында банкроттығы жағдайларын қоспағанда, құрылтайшының сенiмгерлiкпен басқаруға берген мүлкiне оның борыштары бойынша өндiрiп алуға жол берiлмейдi.
5. Кепiлге салынған мүлiктi сенiмгерлiкпен басқаруға беру кепiл ұстаушыны осы мүлiктi өндiрiп алу құқығынан айырмайды.
Ескерту. 885-бапқа өзгеріс енгізілді - ҚР 07.03.2014 N 177-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
886-бап. Мүлiктi сенiмгерлiкпен басқару шарты
1. Мүлiктi сенiмгерлiкпен басқару шарты бойынша бiр тарап (сенiмгерлiкпен басқару құрылтайшысы) екiншi тарапқа (сенiмгер басқарушыға) мүлiктi сенiмгерлiкпен басқаруға бередi, ал екiншi тарап құрылтайшы атаған тұлғаның ( пайда алушының) мүдделерi үшiн осы мүлiктi басқаруды жүзеге асыруға мiндеттенедi.
Егер Қазақстан Республикасының заң актiлерiнде немесе көрсетiлген шартта өзгеше белгiленбесе, мүлiктi сенiмгерлiкпен басқару шартының қолданылу
кезеңiнде сенiмгерлiкпен басқару құрылтайшысы сенiмгерлiкпен басқарылатын мүлiкке қатысты қандай да болсын iс-әрекеттердi жүзеге асыруға құқылы емес.
2. Сенiмгерлiкпен басқару шартында: 1) мүлiктi сенiмгерлiкпен басқару шартының нысанасы және мерзiмi; 2) сенiмгерлiкпен басқаруға берiлетiн мүлiктiң құрамы; 3) пайда алушы туралы нұсқау; 4) сенiмгер басқарушының есеп беру мерзiмдерi мен нысаны;
5) мүлiктi сенiмгерлiкпен басқару шарты тоқтатылған жағдайда сенiп тапсырылған мүліктi алатын адамды көрсету көзделуге тиiс.
Шарттардың жекелеген түрлерi үшiн заң актiлерiнде өзге де елеулi талаптар көзделуi мүмкін.
Шартта басқа талаптар да, оның iшiнде басқарушыға берiлетiн сыйақының мөлшерi мен нысандары көзделуi мүмкiн.
Шартта үшiншi тұлғалардың сенiмгерлiкпен басқаруға берiлген мүлiкке құқығы көрсетiлуге тиiс.
3. Егер заң актiлерiнен немесе пайда болған қатынастар мәнiнен өзгеше туындамаса, мүлiктi сенiмгерлiкпен басқару шарты туралы нормалар мүлiктi сенімгерлiкпен басқаруды белгiлеудiң өзге де негiздерi бойынша пайда болатын қатынастарға қолданылады.
Ескерту. 886-бапқа өзгерту енгізілді - Қазақстан Республикасының 2003.05.16 . N 416 Заңымен .
887-бап. Мүлiктi сенiмгерлiкпен басқару шартының нысаны
1. Мүлiктi сенiмгерлiкпен басқару шарты жазбаша нысанда жасалады. 2. Қозғалмайтын мүлiктi сенiмгерлiкпен басқару шарты, қозғалмайтын
мүлiктi иелiктен айыру туралы шарт үшiн көзделген нысан мен тәртiп бойынша жасалады.
Ескерту. 887-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
888-бап. Сенiмгер басқарушының құқықтары мен мiндеттерi
1. Сенiмгер басқарушының мүлiктi дұрыс басқару мақсатында сеніп тапсырылған мүлікпен меншік иесі жасай алатын кез келген iс-әрекеттi жүргiзуге құқығы бар.
Сенiп берілген мүлікке сенімгер басқарушының құқығы заң актiлерiмен, шартпен немесе мүлiктi сенiмгерлiкпен басқару пайда болғанда негiзге алынған өзге де актiмен шектелуi мүмкiн.
Сенiмгер басқарушы қозғалмайтын мүлiктi иелiктен айыру мен кепiлге салуды сенiмгерлiкпен басқаруды белгiлеу туралы актiде ол тiкелей көрсетiлген жағдайда ғана жасауға құқылы.
2. Сенiмгер басқарушының мүлiктi сенiмгерлiкпен басқару кезiнде өзi жасаған қажеттi шығындарды құрылтайшының (пайда алушының) есебiнен, не сенiп тапсырылған мүлiктiң есебiнен, не сенiп тапсырылған мүлiктi пайдаланудан түскен кiрiстiң есебiнен өтетiп алуға құқығы бар.
Егер мүліктi сенiмгерлiкпен басқаруды белгiлеу туралы актiде көзделсе, сенiмгер басқарушының сыйақы алуға құқығы бар.
3. Сенiмгер басқарушының басқа бiреудiң заңсыз иеленуiнен өзiне сенiп тапсырылған мүлiктi қайтарып алуға, сондай-ақ оның басқару құқығын бұзушылықты жоюды, бұл құқық бұзушылық иеленудi бұзумен байланысты болмаса да, талап етуге құқығы бар.
4. Сенiмгер басқарушы құрылтайшыға және пайда алушыға, мүлiктi сенiмгерлiкпен басқару шартында белгiленген мерзiм мен тәртiп бойынша өз қызметi туралы есеп бередi. Құрылтайшының және (немесе) пайда алушының талап етуi бойынша сенiмгер басқарушының қызметi туралы есеп өзге жағдайда да дереу берiлуге тиiс.
5. Сенiмгер басқарушының өзi үшiн белгiленген шектеулердi бұза отырып жасаған мәмiлесi, егер мұндай мәмiлеге қатысушы үшiншi тұлға ондай шектеулердi бiлмесе және бiлуге тиiс болмаса, жарамды деп танылады. Бұл жағдайда сенiмгер басқарушы құрылтайшы алдында шартқа және заң актiлерiне сәйкес жауап бередi.
Сенiмгер басқарушы өзiне берiлген құқықты асыра пайдаланып немесе өзi үшiн белгiленген шектеулерді бұзып жасаған мәмiле бойынша мiндеттеменi сенiмгер басқарушы өз мүлкi есебiнен мойнына алады.
889-бап. Сенiмгер басқарушының бастамасымен сенiмнiң ауысуы
1. Сенiмгер басқарушы мүлiктi сенiмгерлiкпен басқаруды жеке өзi жүзеге асырады.
2. Сенiмгер басқарушы өзiне сенiп берiлген мүлiктi басқару үшiн қажеттi iс-әрекет жасауды, егер ол бұған мүлiктi сенiмгерлiкпен басқаруды құру туралы актi арқылы уәкiлеттi болса не бұған пайда алушының мүдделерiн қамтамасыз етуге байланысты мән-жайлар себептi мәжбүр болса және бұл орайда құрылтайшының нұсқауларын сұрауға мүмкiндiгi болмаса, басқа адамға тапсыра
алады. Бұл орайда сенiмгер басқарушы өзi таңдап алған сенiм бiлдiрiлушiнiң iс-әрекеті үшiн өзi жасағандай жауап бередi.
Сенiмгер басқарушы сенiмнiң ауысуы туралы дереу құрылтайшыға хабарлауға мiндеттi. Егер заң актiлерiнде өзгеше көзделмесе, бұл жағдайда құрылтайшы сенiмгер басқарушыға бұрын жасалған шығындарын өтеп, ал егер сенiмгерлiкпен басқару кәсiпкерлiк қызмет болса, шеккен залалдарын да өтеп, мүлiктi сенiмгерлiкпен басқаруды тоқтату туралы мәлiмдеуге құқылы.
Ескерту. 889-бапқа өзгерту енгізілді - ҚР 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңымен.
890-бап. Сенiмгер басқарушының жауапкершiлiгi
1. Мүлiктi тиiсiнше басқармаған жағдайда құрылтайшы немесе пайда алушы сотқа сенiмгерлiкпен басқаруды тоқтату және залалдарды өтеу туралы талап қоя алады. Бұл орайда мiндеттердi тиiсiнше орындау үшiн өзiне қатысты барлық шараларды қолданғанын дәлелдей алмаса, сенiмгер басқарушы мiндеттерiн тиiсiнше орындамағаны үшiн, кiнәлi деп саналады.
2. Сенiмгер басқарушы үшiншi тұлғалардың алдында мүлiктi басқаруда тиiсiнше iс-әрекеттер жасамауы салдарынан келтiрiлген залалы үшiн өз мүлкiмен субсидиарлы жауапты болады.
891-бап. Мүлiктi сенiмгерлiкпен басқару шартының тоқтатылуы
1. Мүлiктi сенiмгерлiкпен басқару шарты мiндеттемелердi тоқтатудың жалпы негiздерiмен қатар:
1) сенiмгер басқарушы-азамат қайтыс болғанда, оны өлдi деп жарияланғанда, оны әрекетке қабiлетсiз немесе әрекетке қабiлетi шектеулi, хабар-ошарсыз кеткен деп танығанда; заңды тұлға-сенiмгер басқарушы таратылғанда;
2) сенiм бiлдiрiлген мүлiктi басқаруды жеке жүзеге асыру сенiмгерлiкпен басқарушы үшiн мүмкiн болмауына байланысты сенiмгер басқарушы немесе құрылтайшы бас тартқанда;
3) сенiмгер басқарушыға залалдар және шартта көзделсе, сыйақы төленген жағдайда құрылтайшы шартты орындаудан бас тартқанда;
4) егер шартта көзделсе, кепiл ауыртпалығымен берiлген мүлiктi сыйақы бере отырып басқаруға беру туралы сенiмгер басқарушыға хабарланбаған жағдайға орай ол бас тартқанда тоқтатылады.
2. Сенiп тапсырылған мүлiкке меншiк құқығының ауысуы мүлiктi сенiмгерлiкпен басқаруды тоқтатпайды.
3. Сенiмгерлiкпен басқару шарты тоқтатылған кезде сенiп тапсырылған мүлiк шартта көрсетiлген тұлғаға сенiмгерлiкпен басқаруға берiледi.
4. Құрылтайшы банкрот болған кезде мүлiктi сенiмгерлiкпен басқару тоқтатылады және сенiп тапсырылған мүлiк мүліктік массаға берiледi.
Құрылтайшы-жеке тұлға қайтыс болған жағдайда сенiп тапсырылған мүлiк мұрагерлiк массаға келiп түседi.
5. Егер заң актiлерiнде немесе шартта өзге мерзiм көзделмесе, тараптардың бiрiнiң бастамашылығы бойынша шарт тоқтатылған кезде екiншi тарап (осы баптың 1-тармағының 2) және 4) тармақшаларында көзделген жағдайларды қоспағанда) кемiнде үш ай бұрын хабардар етiлуi тиiс.
6. Бағалы қағаздарды сенiмгерлiкпен басқаруды тоқтату тәртібі мен шарттары Қазақстан Республикасының бағалы қағаздар рыногы туралы заңнамасында белгіленеді.
Ескерту. 891-бапқа өзгерістер енгізілді - ҚР 2011.12.28 N 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.03.2014 N 177-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
892-бап. Акцияларды және өзге де бағалы қағаздарды сенiмгерлiкпен басқару
1. Сенiмгер басқарушының сенiмгерлiкпен басқаруға берiлген және (немесе) сенiп тапсырылған мүлiктiң есебiнен не сенiп тапсырылған мүлiктi пайдаланудан түскен кiрiстiң есебiнен сатып алынған акциялармен және өзге де бағалы қағаздармен операциялар жасауды жүзеге асыруға құқығы бар.
2. Эмиссиялық бағалы қағаздарды сенiмгерлiкпен басқарушы туралы мәлiметтер бағалы қағаздар рыногының кәсiби қатысушысы Қазақстан Республикасының заңдарында белгiленген тәртiппен ашқан сенiмгерлiкпен басқару құрылтайшысының шоты бойынша көрсетiлуге жатады.
3. Егер мүлiктi сенiмгерлiкпен басқаруды құру туралы актiде өзгеше көзделмесе, сенiмдер басқарушы өзiне сенiп тапсырылған акцияларды (акцияны) басқару кезiнде:
1) акционерлік қоғамды басқаруға қатысады; 2) акцияларға тиесілі дивидендтер алады және оларды пайда алушыға бередi;
3) акционерлiк қоғам таратылған жағдайда акцияға тиесiлi мүлiктi алады және оны шартқа сәйкес пайда алушыға немесе құрылтайшыға бередi;
4) акцияларды иелiктен айыруды және кепiлдiктi қоса алғанда, олармен өзге де операцияларды жүзеге асырады.
4. Бағалы қағаздарды сенiмгерлiкпен басқарудың ерекшелiгi Қазақстан Республикасының заңдарымен белгiленедi.
Ескерту. 892-бапқа өзгерту енгізілді - Қазақстан Республикасының 2003.05.16 . N 416 Заңымен.
893-бап. Инвестициялық қорлардың активтерiн сенiмгерлiкпен басқару
Инвестициялық қорлардың активтерiн сенiмгерлiкпен басқару ерекшелiктерi Қазақстан Республикасының инвестициялық және венчурлік қорлар туралы заң актiсiмен белгiленген шарттарда және тәртiппен жүзеге асырылады.
Ескерту. 893-бап жаңа редакцияда – ҚР 2004.07.07. N 577 Заңымен; өзгеріс енгізілді – ҚР 04.07.2018 № 174-VІ (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
894-бап. Кәсіпорынды мүлiктiк кешен ретiнде сенiмгерлiкпен басқару
Кәсіпорынды мүліктік кешен ретінде сенімгерлікпен басқару, егер заң актiлерiнде өзгеше көзделмесе, мүлiктi сенiмгерлiкпен басқаруды құру туралы актiде көзделген шарттар мен тәртiпте жүзеге асырылады.
895-бап. Мемлекеттiк қызметшiнiң мүлкін сенiмгерлiкпен басқару
Мемлекеттiк қызметшiнiң кәсiпкерлiк қызмет үшiн пайдаланылатын мүлкi заң актiлерiнде көзделген жағдайлар мен тәртiп бойынша сенiмгерлiкпен басқаруға берiлуге тиiс.
45-тарау. Кешенді кәсіпкерлік лицензия (франчайзинг)
896-бап. Кешендi кәсiпкерлiк лицензия шартының ұғымы
1. Кешендi кәсiпкерлiк лицензия шарты бойынша бiр тарап (кешендi лицензиар) екiншi тарапқа (кешендi лицензиатқа) сыйақыға айрықша құқықтар кешенiн (лицензиялық кешен), соның iшiнде лицензиардың фирмалық атауын және қорғалатын коммерциялық ақпаратты пайдалану құқығын, сондай-ақ лицензиаттың кәсiпкерлiк қызметiнде пайдалану үшiн шартта көзделген айрықша құқықтардың басқа да объектiлерiн (тауар белгiсiн, қызмет көрсету белгiсiн, патент және т.б.) беруге мiндеттенедi.
2. Кешендi кәсiпкерлiк лицензия шарты белгiлi бір көлемде лицензиялық кешендi, лицензиардың iскерлiк беделi мен коммерциялық тәжiрибесiн (атап
айтқанда, пайдаланудың мейлiнше аз және (немесе) мейлiнше кең көлемiн белгiлей отырып), белгiлi бiр қызмет аясына (лицензиардан алынған немесе пайдаланушы өндiрген тауарларды сату, өзге де коммерциялық қызметтердi жүзеге асыру, жұмыстар орындау, қызметтер көрсету) қолданатын аумақты көрсетiп немесе көрсетпей пайдалануды көздейдi.
3. Кешендi кәсiпкерлiк лицензия шартын кәсiпкерлiк қызметтiң жекелеген салаларында қолдану жөнiндегi шектеу заң актiлерiмен белгiленедi.
897-бап. Кешендi кәсiпкерлiк лицензия шартының нысаны
Кешендi кәсiпкерлiк лицензия шарты жазбаша нысанда жасалуы тиiс.
897-1-бап. Кешенді кәсіпкерлік лицензия шарты бойынша зияткерлік меншік объектісін пайдалануға құқықты табыстауды тіркеу
Кешенді кәсіпкерлік лицензия шарты бойынша Қазақстан Республикасының заңнамасына сәйкес тіркелген немесе халықаралық шарттарға орай тіркеусіз қорғалатын өнертабыстарды, пайдалы модельдерді, өнеркәсіптік үлгілерді, селекциялық жетістіктерді, интегралдық микросхемалар топологияларын, тауар белгілерін (қызмет көрсету белгілерін) пайдалануға құқықты табыстау сараптама ұйымында тіркелуге жатады.
Ескерту. 45-тарау 897-1-баппен толықтырылды - ҚР 07.04.2015 № 300-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
898-бап. Лицензиардың мiндеттерi
Лицензиар шартта көзделген мерзiмдер мен көлемде лицензиатқа техникалық және коммерциялық құжаттаманы беруге және лицензиатқа шарт бойынша берiлген құқықтарды iске асыру үшiн оған қажеттi өзге де ақпаратты ұсынуға, сондай-ақ лицензиатты мұндай құқықтарды жүзеге асыруға байланысты мәселелер бойынша оқытуға және оған консультация беруге мiндеттi.
Шартта лицензиардың басқа да мiндеттерi көзделуi мүмкiн.
899-бап. Лицензиаттың мiндеттерi
Егер шартта өзгеше көзделмесе, лицензиат: 1) шартта көзделген қызметтi iске асыру кезiнде шартта көрсетiлген
лицензиардың лицензиялық кешенiн шартта көрсетiлген түрде пайдалануға;
2) лицензиарды өзiнiң өндiрiстiк аумағына жiберуге, оған қажеттi құжаттаманы беруге және оған берiлген айрықша құқықтардың дұрыс пайдаланылуына бақылау жасауды жүзеге асыру үшiн қажеттi ақпаратты алуға көмек көрсетуге;
3) лицензиардың пайдалануға берiлген айрықша құқықтардың сипатына, пайдалану әдiсi мен шарттарына қатысты барлық нұсқаулықтары мен нұсқауларын сақтауға;
4) лицензиардың өндiрiс құпиясын және одан алынған коммерциялық жасырын ақпаратты жария етпеуге;
5) сатып алушыларды (тапсырыс берушiлердi) олар үшiн мейлiнше айқын әдiспен фирмалық атауын, тауар белгiсiн, қызмет белгiсiн немесе даралаудың өзгедей құралын кешенді кәсіпкерлік лицензиясы шарты негiзiнде пайдаланатындығы туралы хабардар етуге мiндеттi.
900-бап. Шектеу шарттары
1. Кешендi кәсiпкерлiк лицензия шартында шектеу (эксклюзивтiк) талаптары, атап айтқанда:
1) лицензиардың лицензиатқа бекiтiлген аумақта қолдану үшiн басқа ұқсас кешендi кәсiпкерлiк лицензияларды бермеуi не осы аумақта тiкелей дербес қызметтi жүргiзуден тартыну мiндеттемесi;
2) лицензиаттың кешендi кәсiпкерлiк лицензияны пайдалану аумағында лицензиат лицензиарға тиесiлi айрықша құқықтарды пайдалана отырып жүзеге асыратын кәсiпкерлiк қызметке қатысты лицензиармен бәсекеге түспеу мiндеттемесi;
3) лицензиардың бәсекелестерiнен (әлеуеттi бәсекелестерiнен) басқа да кешенді кәсiпкерлiк лицензияларды алудан лицензиаттың бас тартуы;
4) шарт бойынша берiлген айрықша құқықтарды жүзеге асыру кезiнде пайдаланылатын үй-жайдың орналасқан жерiн, сондай-ақ оның сырты мен iшiн безендiрудi лицензиаттың лицензиармен келiсу мiндеттемесi көзделуi мүмкiн.
2. Кешендi кәсiпкерлiк лицензия шартының шектеу талаптары мынадай жағдайда:
1) лицензиардың лицензиат сататын тауардың бағасын немесе лицензиат орындайтын (көрсететiн) жұмыстардың (қызметтердiң) бағасын анықтауға, не аталған бағаның жоғарғы немесе төменгi шегiн белгiлеуге құқығы болғанда;
2) лицензиаттың белгiлi бiр санаттағы сатып алушыларға (тапсырыс берушiлерге) ғана не шартта белгiленген аумақта ғана орналасқан жерi (тұратын
орны) бар ерекше сатып алушыларға (тапсырыс берушiлерге) тауарлар сатуға, жұмыстар орындауға немесе қызметтер көрсетуге құқығы болғанда маңызсыз болып табылады.
Ескерту. 900-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
901-бап. Лицензиардың лицензиатқа қойылатын талаптар бойынша жауапкершiлiгi
Лицензиар кешендi кәсiпкерлiк лицензиялар шарты бойынша сататын ( орындайтын, көрсететiн) тауарлардың (жұмыстардың, қызметтердің) сапасының сәйкессіздігіне байланысты лицензиатқа қойылған талаптар бойынша субсидиарлы жауапты болады.
902-бап. Кешендi кәсiпкерлiк қосалқы лицензия
1. Кешендi кәсiпкерлiк лицензия шартында лицензиатқа берiлген барлық немесе жекелеген айрықша құқықтарды басқа тұлғаларға пайдалануға рұқсат ету құқығы лицензиармен келісілген немесе шартта белгiленген жағдайларда көзделуі мүмкiн.
2. Кешендi кәсiпкерлiк лицензия шартында белгiлi бiр уақыт кезеңi iшiнде пайдалану аумағы көрсетiлiп немесе көрсетiлмей, лицензиаттың белгiлi бiр мөлшерде қосалқы лицензия беру мiндетi қамтылуы мүмкiн.
3. Егер кешендi кәсiпкерлiк қосалқы лицензия шартының ерекшелiктерiнен өзгеше туындамаса, кешендi кәсiпкерлiк қосалқы лицензия шарттарына лицензиардың лицензиатпен негiзгi шартының ережелерi қолданылады.
903-бап. Кешендi кәсiпкерлiк қосалқы лицензияның лицензиардың лицензиатпен негiзгi шартына тәуелдiлiгi
1. Кешендi кәсiпкерлiк қосалқы лицензия шартын, лицензиардың лицензиатпен негiзгi шартынан неғұрлым ұзақ мерзiмге жасауға болмайды.
2. Кешенді кәсіпкерлік лицензия шартының тоқтатылуы осыған сәйкес жасалған барлық кешендi кәсiпкерлiк қосалқы лицензия шартын тоқтатады.
3. Егер заңнамалық актiлерде көзделген негiздер бойынша лицензиардың лицензиатпен негiзгi шарты жарамсыз деп танылса, онда соған сәйкес жасалған кешендi кәсiпкерлiк қосалқы лицензия шарттары маңызсыз деп саналады.
Ескерту. 903-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
904-бап. Лицензиар, лицензиат және қосалқы лицензиат қатынастарының ерекшелiктерi
1. Егер кешендi кәсiпкерлiк лицензия шартында өзгеше көзделмесе, ол мерзiмiнен бұрын тоқтатылған кезде, кешендi кәсiпкерлiк қосалқы лицензия шарты бойынша лицензиаттың құқықтары мен мiндеттерi лицензиарға ауысады.
2. Егер кешендi кәсiпкерлiк лицензия шартында өзгеше көзделмесе, қосалқы лицензиаттардың iс-әрекетiмен лицензиарға келтiрiлген зиян үшiн лицензиат субсидиарлық жауапты болады.
905-бап. Фирмалық атау өзгерген кезде шарттың күшін сақтауы
Лицензиар өзiнiң фирмалық атауын өзгерткен жағдайда кешендi кәсiпкерлiк лицензия шарты сақталады, егер лицензиат шартты бұзуды және залалды өтеудi талап етпесе, лицензиардың жаңа фирмалық атауына қатысты қолданыла бередi. Шарттың қолданылуы сақталған жағдайда лицензиат лицензиарға тиесiлi сыйақыны мөлшерiне қарай азайтуды талап етуге құқылы.
906-бап. Пайдалануға берiлген бiр немесе бiрнеше айрықша құқықтардың өзгеруi кезiнде шарт күшiнiң сақталуы
Пайдалануға берiлген бiр немесе бiрнеше айрықша құқықтарды лицензиар өзгерткен жағдайда, егер лицензиат шартты бұзуды және залалдарды өтеудi талап етпесе, кешендi кәсiпкерлiк лицензия шарты сақталады және лицензиардың жаңа айрықша құқықтарына қатысты қолданылады. Лицензиат шарттың күшi сақталған жағдайда лицензиарға тиесiлi сыйақы мөлшерiне қарай азайтуды талап етуге құқылы.
907-бап. Пайдалануға берiлген айрықша құқықтың тоқтатылу салдары
Егер кешендi кәсiпкерлiк лицензия шартының қолданылу мерзiмiнде шарт бойынша пайдалануға берiлген кешенге кiретiн қандай да болсын айрықша құқықтардың қолданылу мерзiмi өтсе не мұндай құқық өзгеше негiз бойынша тоқтатылса, тоқтатылған құқыққа қатысты ережелердi қоспағанда, шарт сақталады, ал егер шартта өзгеше көзделмесе, лицензиат лицензиарға тиiстi сыйақыны мөлшерiне қарай азайтуды талап етуге құқылы.
908-бап. Кешендi кәсiпкерлiк лицензия шартының тоқтатылуы
1. Мерзiмi көрсетiлiп жасалған кешендi кәсiпкерлiк лицензия шарты осы Кодекстiң ережелерiне сәйкес бұзылуы мүмкiн.
2. Шартта тараптар мерзiмсiз кешендi кәсiпкерлiк лицензия шартынан, егер шартта хабарлаудың неғұрлым ұзақ мерзiмi көзделмесе, ол туралы басқа тарапты алты ай бұрын хабардар ете отырып, бас тартуға құқылы.
909-бап. Кешендi кәсiпкерлiк лицензия шартындағы құқықтық мирасқорлық
1. Лицензия кешенiне кiретiн қандай да болсын жекелеген айрықша құқықтың басқа тұлғаға ауысуы шартты өзгертуге немесе бұзуға негiз болып табылмайды. Жаңа құқық иеленушi басқаға ауысқан айрықша құқыққа қатысты құқықтар мен міндеттер бөлiгiнде шартқа кiредi.
2. Лицензиар-азамат қайтыс болған жағдайда кешендi кәсiпкерлiк лицензия шарты бойынша оның құқықтары мен мiндеттерi соңғысы тiркелген немесе мұрагерлiк ашылған күннен бастап алты айдың iшiнде кәсiпкер ретiнде тiркелетiн жағдайда мұрагерге ауысады. Өзге жағдайда шарт тоқтатылады.
Мұрагер тиiстi құқықтар мен мiндеттердi қабылдағанға дейiнгi немесе мұрагердi кәсiпкер ретiнде тiркегенге дейiнгi кезеңде лицензия кешенiн басқаруды белгiлi тәртiппен нотариус тағайындаған сенімгер басқарушы жүзеге асырады.
46-тарау. Конкурстық міндеттемелер
910-бап. Конкурстық мiндеттеменiң мазмұны
1. Осы тарау сыйақы беруге көпшiлiк алдында уәде беруден туындайтын конкурстық мiндеттемелердi және тендер, аукцион әрі саудаластықтың Қазақстан Республикасының заң актілерімен белгіленген өзге де нысандары негізінде туындайтын мiндеттемелердi реттейдi.
Конкурстық мiндеттемелер Қазақстан Республикасының өзге заң актiлерiмен де регламенттелуi мүмкiн.
2. Конкурстық мiндеттемеде оның бастамашысы конкурстың өзi айқындаған нысанасы мен бастапқы шарттарының негiзiнде тұлғалардың белгiсiз немесе белгiлi бiр адамдар тобына оған қатысуға ұсыныс жасайды және конкурстың жеңiмпазына белгiленген сыйақы төлеуге және (немесе) онымен конкурстық мiндеттемелердiң мазмұнына сәйкес шарт жасасуға мiндеттенедi.
3. Конкурсқа қатысуға ұсынысты конкурстың бастамашысы тiкелей немесе конкурстың делдал-ұйымдастырушысы арқылы жасауы мүмкiн.
Делдалдың құқықтары мен мiндеттерi оның конкурстың бастамашысымен жасасқан шартымен айқындалады.
4. Конкурс бастамашысының конкурсқа қатысуға шақырған ұсынысы баспасөзде және өзге де бұқаралық ақпарат құралдарында барлық тiлек бiлдiрушiлерге хабарлау жолымен жолданғанда - ашық немесе конкурсқа қатысуға шақырған ұсыныс конкурс бастамашысының таңдауы бойынша тұлғалардың белгiлi бiр тобына жолданғанда - жабық болуы мүмкiн.
5. Конкурстың бастамашысы конкурсқа қатысуға тiлек бiлдiрушi тұлғаларға алдын ала iрiктеу жүргiзгенде ашық конкурс оған қатысушылардың бiлiктiлiгiмен байланыстырылуы мүмкiн.
Ескерту. 910-бапқа өзгерту енгізілді - Қазақстан Республикасы 2002.05.21. N 323 Заңымен .
911-бап. Сыйақыға жария уәде беру
1. Жұмысты жақсы орындағаны немесе өзге де нәтижелерге жеткенi үшiн ақшалай немесе өзгеше нысанда сыйақы төлеу туралы жария хабарлаған кез келген тұлға конкурс шарттарына сәйкес оның жеңiмпазы болып танылған кез келген тұлғаның алдында өз мiндеттемесiн орындауы тиiс.
2. Сыйақыға жария уәде беру тапсырманың мәнiн, нәтижелердi ұсынудың өлшемдерi мен тәртiбiн, сыйақының мөлшерi мен нысанын, сондай-ақ нәтижелердi жариялаудың тәртiбi мен мерзiмдерiн көздейтiн шарттарды мiндеттi түрде қамтуға тиiс.
3. Сыйақы төлеу туралы шешiм мен оны төлеудiң өзi уәдеде белгiленген мерзiмдерде қабылдануға және iске асырылуға тиiс.
4. Егер конкурс ғылым, әдебиет немесе өнер туындысын жасауға арналып хабарланса, сыйақыға жария уәде беруде өзгеше белгiленбесе, жария уәде берген тұлға туындыны жасаушымен оған қаламақы төлей отырып, оны пайдалануға шарт жасасуға басым құқық алады.
5. Сыйақы туралы жария уәде берген тұлға, егер конкурс шарттарында өзгеше көзделмесе, сыйақы тағайындалмаған жұмыстарды олардың жасаушыларына қайтарып беруге міндетті.
912-бап. Сыйақыға жария уәде берудiң күшiн жою
1. Сыйақы төлеу туралы жария хабарлаған тұлға, бас тартуға жол берiлмейтiндiгi хабарландырудың өзiнде көзделген немесе содан туындайтын
немесе сыйақыға уәде берiлген iс-әрекеттердi жасау үшiн белгiлi бiр мерзiм берiлген немесе бас тарту туралы хабарланған кезде соған үн қосқан адамдардың ең болмағанда бiреуі мiндеттемеде көрсетiлген iс-әрекеттердi орындап қойған жағдайлардан басқасында, берiлген уәдеден сол нысанда бас тартуға құқылы.
2. Сыйақыға жария уәде берудiң күшiн жою сыйақы туралы хабарлаған тұлғаны үн қосқан адамның хабарландыруда көзделген iс-әрекеттердi жасауға байланысты шеккен шығындарын өтеуден босатпайды. Барлық жағдайларда өтеудiң мөлшерi хабарландыруда аталған сыйақыдан аспауға тиiс.
913-бап. Лотереялар, тотализаторлар және өзге де ойындар өткiзу ерекшелiктерi
1. Мемлекеттiң немесе уәкiлеттi мемлекеттiк органнан тотализаторлар мен тәуекелге негiзделген басқа да ойындар өткiзуге лицензия алған адамның, ал лотереялар үшін лотерея операторының және осындай ойындарға қатысушылардың арасындағы қатынастар шартқа негiзделген.
Лотерея операторы мен лотереяға қатысушы арасындағы шарт лотереяға қатысушы лотерея билетінiң, түбiртектің немесе өзге құжаттың құнын төлеген және лотерея билетін, түбiртекті немесе өзге құжатты берген кезден бастап жасалған болып танылады.
2. Лотерея, тотализатор немесе өзге де ойындарды өткiзу шарттарына сәйкес ұтқан адам болып танылатын адамдарға ойындардың бастамашысы ( ұйымдастырушысы), ал лотереялар үшін лотерея операторы ұтыс төлеуге тиiс.
Ойындардың бастамашысы (ұйымдастырушысы) мерзiмінде, мөлшерде, нысанда (ақшалай немесе заттай) ұтыс төлеуді ойындарды өткiзу талаптарына сәйкес, ал егер бұл талаптарда мерзiм көрсетiлмесе ойындардың нәтижелерi шығарылған кезден бастап он күннен кешiктiрмей жүзеге асырады.
Лотерея операторының ұтысты төлеуі заңда белгіленген мерзiмдерде, лотерея өткiзу талаптарында айқындалатын мөлшерде, нысанда (ақшалай немесе заттай) жүзеге асырылады.
3. Ойындардың бастамашысы (ұйымдастырушысы), лотерея операторы осы баптың 2-тармағында аталған мiндеттерiн орындамаған жағдайда, лотереяда, тотализаторда немесе өзге ойындарда ұтып алған қатысушы өзіне ұтысты төлеудi , сондай-ақ келтiрiлген залалдарды өтеудi талап етуге құқылы.
Ескерту. 913-бап жаңа редакцияда - ҚР 09.04.2016 № 496-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
914-бап. Ойындар мен бәс тiгудi өткiзуге және оларға қатысуға байланысты талаптар
Азаматтар мен заңды тұлғалардың тәуекелге негiзделген ойындар немесе бәс тiгу (құмар ойындар мен бәстер) ұйымдастыруға, өткiзуге немесе оларға қатысуға байланысты талаптары, ойын бизнесін ұйымдастырушы құмар ойындарын және (немесе) бәс тігуді өткізудің шарттарын сақтаған кезде, осы Кодекстiң 913-бабында аталған қатынастардан туындайтын талаптарды қоспағанда, сот қорғауына жатпайды.
Ескерту. 914-бапқа өзгерту енгізілді - ҚР-ның 2009.05.04. N 157-IV ( қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
915-бап. Тендер
1. Тендер нысанындағы саудаластық кезiнде оның бастамашысы ( ұйымдастырушы) өзi ұсынған бастапқы шарттардың негізiнде тендер бастамашысы үшiн шарттың ең жақсы талаптарын ұсынған тендер қатысушысымен шарт жасасуға (сатушы, сатып алушы, тапсырысшы, мердiгер, жалға берушi, жалға алушы және т.б. ретiнде) мiндеттенедi.
2. Тендерге қатысушылар, тендер шарттарында белгiленген мерзiмнiң шегiнде, тендер бастамашысына немесе оның ұйымдастырушысына тендермен ұйғарылған барлық құжаттаманы қоса бере отырып, өз ұсыныстарын жазбаша түрде жiбередi. Тендердiң шарттарында ұсыныстарды желiмделген конверттермен және девиздермен жiберу көзделуi мүмкiн.
Ұсыныстарды беру мерзiмдерiн бұзу, егер оның бастамашысы мерзiмiн өткiзiп алған тұлғаның тендерге қатысуға жiберiлгенi туралы жазбаша түрде хабарламаса, мерзiмiн өткiзiп алған тұлғаны тендерге қатысушылардың қатарынан шығаруға әкеп соғады.
3. Тендерге қатысушылардың арасынан оның жеңiмпазын таңдауды тендер бастамашысы немесе ол құрған тендер комиссиясы жабық немесе тендердiң шарттары бойынша ашық тәртiппен жүргiзедi.
4. Егер тендерге қатысушылар екеуден аз болса немесе тендерге қатысушылардың ұсыныстарын оның бастамашысы тендердiң талаптарын қанағаттандырмайды деп таныса, оның бастамашысы тендердi өткiзiлмеген деп тануы мүмкiн.
5. Тендердiң жеңiмпазы мен оның бастамашысы тиiстi шарт жасасады. Тендердiң бастамашысы жеңiмпазбен тиiстi шарт жасасудан бас тартқан жағдайда тендердiң жеңiмпазы оған келтiрiлген залалдарды өтетiп алуға құқылы.
6. Тендердiң шарттарында тендерге әрбiр қатысушының тендер қорытындылары шығарылғаннан кейiн қатысушыларға қайтарылатын кепiлдiк жарна енгiзiлуi көзделуi мүмкiн. Егер тендерге қатысушы тендердiң мерзiмi өткенге дейiн өз ұсынысынан бас тартса немесе оны өзгертсе, кепiлдiк жарна қайтарылмайды.
Жеңiмпаз тендер жеңiмпазының ұсыныстарына жауап беретiн жағдайларда тендер бастамашысымен тиісті шарт жасасудан бас тартса, кепiлдiк жарна жеңімпазға қайтарылмайды.
Ескерту. 915-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
916-бап. Аукцион
1. Аукцион нысанындағы саудаластық кезiнде сатушы аукционның затын ол үшiн неғұрлым жоғары баға ұсынатын аукционға қатысушыға сатуға мiндеттенедi.
2. Аукцион сатушы жариялаған бағаны арттыру немесе кемiту талаптарымен өткiзiлуi мүмкiн.
3. Бағаны төмендетумен өткiзiлетiн аукцион шарттарында заттың сатылуы мүмкiн болатын ең төмен баға көзделуi мүмкiн.
4. Азаматтық айналымнан шығарылмаған кез келген қозғалатын немесе қозғалмайтын мүлiк, оның iшiнде интеллектуалдық меншiк объектiлерi, импорттық, экспорттық және өзге де квоталар мен лицензияларды қоса алғанда, шарттар мен мүлiктiк құқықтар аукционның нысанасы болуы мүмкiн.
5. Аукционға қатысу туралы ұсыныстар аукцион заты, оның өтетiн орны мен уақыты туралы мәлiметтердi қамтуға тиiс.
6. Аукционға қатысуға тiлек бiлдiрген тұлғалар, егер оны өткiзудiң шарттарында өзгеше белгiленбесе, аукцион басталғанға дейiн аукционға қатысуға өтiнiш беруге және кепiлдiк жарнаның белгiленген сомасын енгiзуге тиiс.
7. Егер аукционға кемiнде екi қатысушы (сатып алушы) қатысса, ол өте алады .
8. Егер аукционның затын оған қатысушылардың бiрде-бiрiнiң сатып алғысы келмесе, бастапқы баға төмендетiлуi немесе аукционның заты осы аукционнан алып тасталуы мүмкiн.
9. Егер аукцион шарттарында өзгеше белгiленбесе, ең жоғары баға ұсынған аукционға қатысушымен оған аукционның затын сату туралы шарт жасалады.
10. Егер сатып алушы осы баптың 9-тармағында көзделген шартты жасасудан бас тартса, ол аукционға қатысушылардың қатарынан шығарылады, оған кепiлдiк жарна қайтарылмайды, ал сатып алушы сатып алудан бас тартқан аукционның заты қайтадан саудаластыққа қойылуы мүмкiн.
11. Аукционға қатысқан, бiрақ онда ештеңе сатып алмаған тұлғаларға кепiлдiк жарнаның сомасы қайтарылады.
Аукционның қандай да болсын затын сатып алған тұлғаға кепiлдiк жарнасының сомасы төленген сатып алу бағасының есебiне есептеледi.
Ескерту. 916-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
47-тарау. Зиян келтірудің салдарынан туындайтын міндеттемелер Параграф 1. Жалпы ережелер
917-бап. Зиян келтiргенi үшiн жауаптылықтың жалпы негiздерi
1. Азаматтар мен заңды тұлғалардың мүлiктiк немесе мүлiктiк емес игiлiктерi мен құқықтарына заңсыз iс-әрекеттермен (әрекетсiздiкпен) келтiрiлген (мүлiктiк және (немесе) мүлiктiк емес) зиянды, оны келтiрген тұлға толық көлемiнде өтеуге тиiс.
Заң актiлерiнде зиянды өтеу мiндетi зиян келтiрушi болып табылмайтын тұлғаға жүктелуi, сондай-ақ өтеудiң неғұрлым жоғары мөлшерi белгiленуi мүмкiн.
2. Зиян келтiрушi, осы Кодексте көзделген жағдайларды қоспағанда, егер зиян өзiнiң кiнәсiнен келтiрiлмегендiгiн дәлелдесе, оны өтеуден босатылады.
3. Заңды iс-әрекеттермен келтiрiлген зиян осы Кодексте және өзге де заң актiлерiнде көзделген жағдайларда өтелуге тиiс.
918-бап. Зиян келтiрудің алдын алу
1. Болашақта зиян келтiру қаупi мұндай қауiптi тудыратын iс-әрекеттерге тыйым салу туралы талап қоюға негiз бола алады.
2. Егер келтiрiлген зиян оны келтiрудi жалғастыратын немесе жаңадан зиян келтiру қаупiн туғызатын кәсiпорынды, ғимаратты пайдаланудың не өзге де өндiрiстiк қызметтiң салдарынан болса, сот зиянды өтеуден басқа, жауапкерге тиiстi қызметiн тоқтатуды мiндеттеуге құқылы.
Егер тиiстi қызметтiң тоқтатылуы қоғамдық мүдделерге қайшы келсе, сот оны тоқтату туралы талаптан бас тарта алады. Мұндай қызметтi тоқтатудан бас
тарту жәбiрленушiлердi осы қызметтен келтiрiлген зиянды өтеттiру құқығынан айырмайды.
919-бап. Қажеттi қорғану жағдайында зиян келтiру
Қажеттi қорғану жағдайында келтiрiлген зиян, егер бұл ретте оның шегiнен асып кетпесе, өтеуге жатпайды.
920-бап. Аса қажеттi жағдайда зиян келтiру
Аса қажеттi жағдайда, яғни зиян келтiрушiнiң өзiне немесе басқа тұлғаларға қатер туғызатын қауiптi жою үшiн келтiрiлген зиян, егер бұл қауiптi осы жағдайларда өзге құралдармен жою мүмкiн болмаса, оны зиян келтiрген тұлға өтеуге тиiс.
Мұндай зиян келтiрiлген мән-жайларды ескере отырып, сот оны өтеу мiндетiн зиян келтiрушi мүддесiне iс-әрекет жасаған үшiншi бiр тұлғаға немесе үлестiк тәртiппен осы үшiншi тұлға мен зиян келтiрушiге жүктеуi, сондай-ақ осы үшiншi тұлғаны да, зиян келтiрушiнi де зиянды өтеуден толық немесе iшiнара босатуы мүмкiн.
921-бап. Заңды тұлғаның немесе азаматтың өз қызметкерi келтiрген зиян үшiн жауапкершiлiгi
1. Заңды тұлға немесе азамат өзiнiң қызметкерi еңбек (қызметтiк, лауазымдық ) мiндеттерiн атқару кезiнде келтiрген зиянды өтейдi.
2. Зиян келтiруi салдарынан туындайтын мiндеттемелер туралы осы Кодекстiң ережелерiне қатысты қызметкерлер деп жұмысты еңбек шартының негiзiнде, сондай-ақ азаматтық-құқықтық шарттың негiзiнде орындаған, егер бұл ретте жұмыстардың кауіпсіз жүргізілуіне жауапты тиiстi заңды тұлғаның немесе азаматтың тапсырмасымен және бақылауымен iс-әрекет жасаған немесе iс-әрекет жасауға тиiстi болған азаматтар танылады.
Шаруашылық серiктестiктер, акционерлiк қоғамдар мен өндiрiстiк кооперативтер өздерiнiң қатысушылары (мүшелерi) серiктестiктiң, акционерлiк қоғамның немесе кооперативтiң кәсiпкерлiк, өндiрiстiк немесе өзге де қызметiн жүзеге асыруы кезiнде соңғылары келтiрген зиянды өтейдi.
Ескерту. 921-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.05.15 . N 253 Заңымен.
922-бап. Мемлекеттiк органдар, жергiлiктi өзiн-өзi басқару органдары, сондай-ақ олардың лауазымды адамдары келтiрген зиян үшiн жауапкершiлiк
1. Мемлекеттiк органдардың заң актiлерiне сәйкес келмейтiн актілерді шығаруының салдарынан келтiрiлген зиян актiнi шығарған органдар мен лауазымды адамдардың кiнәсiне қарамастан, сот шешiмi негiзiнде өтелуге тиiс. Зиян мемлекеттiк қазына есебiнен өтеледi. Қаржы органдары не арнайы тапсырма бойынша басқа органдар мен азаматтар қазына өкiлдерi болады.
2. Жергiлiктi өзiн-өзi басқару органдары өз органдары мен лауазымды адамдары келтiрген зиян үшiн сот тәртiбiмен жауап бередi.
3. Мемлекеттiк органдар лауазымды адамдарының әкiмшiлiк басқару саласындағы заңсыз iс-әрекетiнен (әрекетсiздiгiнен) келтiрiлген зиян осы органдардың иелiгiндегi ақшаның есебiнен (осы Кодекстiң 917-бабы) жалпы негiздерде өтеледi. Олар жеткiлiксiз болған кезде зиян мемлекеттiк қазынаның есебiнен субсидиарлық жолмен өтеледi.
923-бап. Анықтау, алдын ала тергеу, прокуратура және сот органдарының заңсыз iс-әрекеттерiмен келтiрiлген зиян үшін жауапкершiлiк
1. Заңсыз соттау, заңсыз қылмыстық жауапқа тарту, бұлтартпау шарасы ретiнде заңсыз қамауға алу, үйде қамауда ұстау, ешқайда кетпеуi туралы қолхат алуды заңсыз қолдану, қамау немесе еңбекпен түзеу түрiндегi әкiмшiлiк жазаны заңсыз қолдану, психиатриялық емдеу мекемесiне немесе басқа емдеу мекемесiне заңсыз орналастыру салдарынан азаматқа келтiрiлген зиянды анықтау , алдын ала тергеу, прокуратура және сот органдары лауазымды адамдарының кiнәсiне қарамастан, заң актiлерiнде белгiленген тәртiппен толық көлемде мемлекет өтейдi.
2. Анықтау, алдын ала тергеу, прокуратура органдарының өзге де заңсыз iс-әрекетiнiң салдарынан азаматқа немесе заңды тұлғаға келтiрiлген зиян осы Кодекстiң 922-бабында көзделген негiздер мен тәртiп бойынша өтеледi.
3. Судьялардың және басқа сот қызметкерлерiнiң заңсыз iс-әрекетiмен ( әрекетсiздiгiмен) сот төрелiгiн жүзеге асыру кезiнде келтiрiлген зиян, осы баптың 1-тармағында көзделгеннен басқа ретте, осы Кодекстiң 922-бабының 3- тармағында белгiленген негiздер мен тәртiп бойынша өтеледi.
924-бап. Өзiнiң жауаптылығын сақтандырған тұлғаның зиянды өтеуi
Ерiктi немесе мiндеттi түрде сақтандыру тәртібімен өзінің жауаптылығын сақтандырған заңды тұлға немесе азамат, келтiрiлген зиянды толық өтеу үшiн сақтандыру сомасы жеткіліксіз болған жағдайда сақтандыру сомасы мен залалдың нақты мөлшерiнiң арасындағы айырманы өтейдi.
925-бап. Он төрт жасқа дейiнгi кәмелетке толмағандар келтiрген зиян үшiн жауапкершiлiк
1. Жасы он төртке жетпеген кәмелетке толмағандар (жас балалар) келтiрген зиян үшiн, егер зиян өздерiнiң кiнәсiнен болмағанын дәлелдемесе, оның заңды өкілдері жауап бередi.
2. Егер қорғаншылыққа мұқтаж жас бала тиiстi тәрбиелеу, емдеу мекемесiнде , халықты әлеуметтiк қорғау мекемесiнде немесе заңға орай өзiнiң қорғаншысы болып табылатын осы сияқты басқа мекемеде болса, егер зиян өзiнiң кiнәсiнен болмағанын дәлелдемесе, жас бала келтiрген зиянды сол мекеме өтеуге мiндеттi.
3. Егер жас бала оқу орнының, тәрбиелеу, емдеу немесе оны қадағалауды жүзеге асыруға мiндеттi өзге мекеменiң, сондай-ақ шарттың негiзiнде қадағалауды жүзеге асыруға міндеттi адамның бақылауында болған уақытта зиян келтiрсе, зиян олардың қадағалауды жүзеге асырудағы кiнәсiнен болмағанын дәлелдемесе, келтiрiлген зиян үшiн осы мекемелер мен адамдар, жауап бередi.
4. Заңды өкілдердің, оқу орындарының, тәрбиелеу, емдеу және өзге де мекемелердiң зиянды өтеу жөнiндегi мiндетi жас баланың кәмелетке толуымен немесе оның зиянды өтеу үшiн жеткiлiктi мүлiк алуымен тоқтатылмайды.
Егер заңды өкілдері қайтыс болса немесе олардың, сондай-ақ осы баптың 3- тармағында аталған басқа да азаматтардың жәбiрленушiнiң өмiрi мен денсаулығына келтiрiлген зиянды өтеу үшiн жеткiлiктi қаражаты болмаса, ал толық әрекет қабiлеттiлiгi болған зиян келтiрушiнiң өзiнде мұндай қаражат болса , сот жәбiрленушi мен зиян келтiрушiнiң мүлiктiк жағдайын, сондай-ақ басқа да мән-жайларды ескере отырып, зиянды зиян келтiрушiнiң өзiнiң мүлкi есебiнен толық немесе iшiнара өтеу туралы шешiм қабылдауға құқылы.
Ескерту. 925-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
926-бап. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандар келтiрген зиян үшiн жауапкершiлiк
1. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандар өздерi келтiрген зиян үшiн жалпы негiздер бойынша дербес жауап бередi.
2. Он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандардың зиянды өтеу үшiн жеткiлiкті мүлкі немесе өзге кiрiс көздерi болмаған жағдайда, егер олар зиянның өз кiнәсiнен болмағанын дәлелдемесе, зиянды толық немесе оның жетпей тұрған бөлiгiн заңды өкілдері өтеуге тиiс.
Егер он төрт жастан он сегiз жасқа дейiнгi қамқоршылыққа мұқтаж кәмелетке толмаған адам тиiстi тәрбиелеу, емдеу мекемесiнде, халықты әлеуметтiк қорғау мекемесiнде немесе заңға орай оның қамқоршысы болып табылатын сол сияқты басқа да мекемеде болса, зиян өздерiнiң кiнәсiнен болмағанын дәлелдемесе, зиянды толық немесе оның жетiспей тұрған бөлiгiн сол мекемелер өтеуге мiндеттi.
3. Заңды өкілдердің және тиiстi мекеменiң зиянды өтеу жөнiндегi мiндетi зиян келтiрушiнiң кәмелетке толуы бойынша немесе онда кәмелетке толғанға дейiн зиянды өтеуге жеткiлiктi мүлiк немесе кiрiс көздерi пайда болса не ол кәмелетке толғанға дейiн әрекет қабiлеттiлiгiне ие болса тоқтатылады (осы Кодекстiң 17-бабының 2-тармағы, 22-1-бабы).
Ескерту. 926-бапқа өзгеріс енгізілді - ҚР 2007.01.12 N 225 , 2011.03.25 N 421- IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
927-бап. Ата-ана құқықтарынан айырылған ата-аналардың кәмелетке толмағандар келтiрген зиян үшiн жауапкершiлiгi
Ата-ана құқықтарынан айырылған ата-анаға, егер баланың зиян келтiруге әкеп соқтырған мiнез-құлқы ата-ананың баланы тәрбиелеу жөнiндегi мiндеттерiн дұрыс жүзеге асырмауының салдары болып табылады деп анықталса, сот ата-анаға ата-ана құқықтарынан айырылғаннан кейiн үш жыл бойы оның кәмелетке толмаған балалары келтiрген зиян үшiн жауаптылық жүктеуi мүмкiн.
928-бап. Әрекетке қабiлетсiз деп танылған азамат келтiрген зиян үшiн жауапкершiлiк
1. Әрекетке қабiлетсiз деп танылған азамат келтiрген зиянды (осы Кодекстiң 26-бабы), егер олар зиян өздерiнiң кiнәсiнен болмағанын дәлелдемесе, оның қорғаншысы немесе оны қадағалауды жүзеге асыруға мiндеттi ұйым өтейдi.
2. Қорғаншының немесе ұйымның әрекетке қабiлетсiз деп танылған азамат келтiрген зиянды өтеу жөнiндегi мiндетi оның әрекетке қабiлеттiлiгi қалпына келген жағдайда да тоқтатылмайды.
3. Егер қорғаншы қайтыс болса не оның зиянды өтеу үшiн жеткiлiктi қаражаты болмаса, ал зиян келтiрушiнiң өзiнде мұндай қаражат болса, сот
жәбiрленушi мен зиян келтiрушiнiң мүлiктiк жағдайын, сондай-ақ басқа да мән-жайларды, атап айтқанда, зиян келтiрушiнiң әрекетке қабiлеттiлiгiнiң қалпына келуiн ескере отырып, жәбiрленушiнiң өмiрi мен денсаулығына келтiрiлген зиянды сол зиян келтiрушiнiң мүлкi есебiнен толық немесе iшiнара өтеу туралы шешiм қабылдауға құқылы.
929-бап. Әрекетке қабiлеттiлiгi шектеулi деп танылған азамат келтiрген зиян үшiн жауапкершiлiк
Әрекетке қабiлеттiлiгi шектеулi деп танылған азаматтың спирттi iшiмдiктердi немесе есiрткi заттарды жөнсiз пайдалануы салдарынан келтiрген зиянды (осы Кодекстiң 27-бабы) зиян келтiрушiнiң өзi жалпы негiздерде өтейдi.
930-бап. Өз iс-әрекетiнiң мәнiн түсiнуге қабiлетсiз азамат келтiрген зиян үшiн жауапкершiлiк
1. Өз iс-әрекетiнiң мәнiн түсiне алмаған немесе өзiне-өзi ие бола алмайтын жағдайда зиян келтiрген әрекетке қабiлеттi азамат, сондай-ақ он төрт жастан он сегiз жасқа дейiнгi кәмелетке толмағандар өздерi келтiрген зиян үшiн жауап бермейдi.
Егер жәбiрленушiнiң өмiрiне немесе денсаулығына зиян келтiрiлсе, сот жәбiрленушi мен зиян келтiрушiнiң мүлiктiк жағдайын, сондай-ақ басқа да мән-жайларды ескере отырып, зиянды өтеу жөнiндегi мiндеттi зиян келтiрушiге толық немесе iшiнара жүктей алады.
2. Егер спирттi iшiмдiктердi, есiрткi заттарды пайдаланып немесе өзге әдiспен өзiн осындай жағдайға келтiрсе, зиян келтiрушi жауаптылықтан босатылмайды.
3. Егер зиянды жүйке ауруы және ақыл-ойының кемiстiгi салдарынан өз iс-әрекетiнiң мәнiн түсiне алмайтын немесе өзiне-өзi ие бола алмайтын адам келтiрсе, сот зиянды өтеу мiндетiн осы адаммен бiрге тұратын еңбекке қабiлеттiлерге: зиян келтiрушiнiң осындай жағдайын бiлген, бiрақ оны әрекетке қабiлетсiз деп тану және оған қорғаншылық жасау туралы мәселе қоймаған жұбайына, ата-анасына, кәмелетке толған балаларына жүктеуi мүмкiн.
931-бап. Айналасындағыларға жоғары қауiп туғызатын қызмет (жоғары қауiптiлiк көздерi) арқылы келтiрiлген зиян үшiн жауапкершiлiк
1. Қызметi айналасындағылар үшiн жоғары қауiптiлiкпен байланысты заңды тұлғалар мен азаматтар (көлiк ұйымдары, өнеркәсiп орындары, құрылыстар,
көлiк құралдарының иелерi және т.б.), егер зиян дүлей күштердiң немесе жәбiрленушiнiң терiс пиғылының салдарынан пайда болғанын дәлелдемесе, жоғары қауiптiлiк көздерi келтiрген зиянды өтеуге мiндеттi.
Зиянды өтеу мiндетi меншiк құқығымен, шаруашылық жүргiзу құқығымен немесе жедел басқару құқығымен немесе кез келген басқа да заңды негiзбен ( мүлiктiк жалдау шарты, көлiк құралын басқару құқығына берiлген сенiмхат, көздердi беру туралы құзіреттi органның өкiмi арқылы және т.б.) жоғары қауiптiлiк көзiн иеленушi заңды тұлғаға немесе азаматқа жүктеледi.
2. Жоғары қауiптiлiк көздерiнiң иелерi қауiптiлiк көздерiнiң өзара iс-қимылының (көлiк құралдарының соқтығысуы және т.б.) салдарынан үшiншi тұлғаларға келтiрiлген зиян үшiн осы баптың 1-тармағында көзделген негiздер бойынша ортақ жауапты болады.
Жоғары қауiптiлiк көздерiнiң өзара iс-қимылы салдарынан олардың иелерiне келтiрiлген зиян жалпы негiздерде өтеледi. Бұл орайда:
1) бiр тараптың кiнәсiнен келтiрiлген зиянды осы тарап толық көлемiнде өтейдi;
2) екi немесе бiрнеше тараптың кiнәсiнен келтiрiлген зиян олардың әрқайсысының кiнәсiнiң дәрежесiне сай өтеледi.
Тараптардың әрқайсысының кiнәсiнiң дәрежесiн белгiлеу мүмкiн болмаған кезде жауаптылық олардың арасында тең бөлiнедi.
Зиян келтiруде тараптардың кiнәсi болмаған кезде олардың бiрде-бiреуiнiң зиянды өтеудi талап етуге құқығы жоқ. Тараптардың әрқайсысы мұндай жағдайда өзi шеккен шығындар тәуекелiн көтередi.
3. Жоғары қауiптiлiк көзiнiң иесi, егер қауiптiлiк көзi басқа тұлғалардың заңға қарсы iс-әрекеттерi салдарынан иеленушiнiң иелiгiнен шыққанын дәлелдесе, осы көз келтiрген зиян үшiн жауап бермейдi. Мұндай жағдайларда жоғары қауiптiлiк көзi келтiрген зиян үшiн ондай көздi заңға қайшы иеленушiлер жауап бередi. Жоғары қауiптiлiк көзiн оның иелiгiнен заңға қайшы алуда иеленушiнiң кiнәсi болған жағдайда жауаптылық иеленушiге де, жоғары қауiптiлiк көзiн иеленген тұлғаларға да жүктелуi мүмкiн.
932-бап. Бiрлесiп келтiрiлген зиян үшiн жауапкершiлiк
Бiрлесiп зиян келтiрген тұлғалар жәбiрленушiнiң алдында ортақтасып жауап бередi.
Сот жәбiрленушiнiң арызы бойынша және оның мүдделерi үшiн бiрлесiп зиян келтiрген тұлғаларға үлестiк жауаптылық жүктеуге құқылы.
933-бап. Зиян келтiрген тұлғаға керi талап қою құқығы
1. Басқа адамның (еңбек (қызмет, лауазымдық) мiндеттерiн атқару кезiнде қызметкердiң, көлiк құралын жүргізушi адамның және т.б.) келтiрген зиянды өтеушiнiң, егер заң актiлерiнде өзгеше мөлшер белгiленбесе, төленген төлем мөлшерiнде осы адамға керi талап қоюға (регресс) құқығы бар.
2. Бiрлесiп келтiрiлген зиянды өтеген зиян келтiрушi, осы зиян келтiрушi кiнәсiнiң дәрежесiне сәйкес мөлшерде жәбiрленушiге төленген үлестi зиян келтiрушiлердiң әрқайсысынан талап етуге құқылы. Кiнәнiң дәрежесiн айқындау мүмкiн болмаған жағдайда үлестер тең деп танылады.
3. Анықтау, алдын ала тергеу, прокуратура және сот органдарының лауазымды адамдары келтiрген зиянды өтеген мемлекеттiң (осы Кодекстiң 923- бабының 1-тармағы) мұндай адамдардың кiнәсi соттың заңды күшiне енген үкiмiмен белгiленсе, осы адамдарға керi талап қоюға құқығы бар.
4. Осы Кодекстiң 925-928-баптарында аталған негiздер бойынша зиянды өтеген адамдардың зиян келтiрген адамға керi талап қоюға (регресске) құқығы жоқ.
934-бап. Мүлiктiк зиянды өтеу әдiстерi
Зиянды өтеу туралы талапты қанағаттандыра отырып, сот iстiң мән-жайына сәйкес зиян үшiн жауапты адамды келтiрген зиянды толық өтеуге немесе оны заттай өтеуге (тегi мен сапасы нақ сондай зат беруге, бүлiнген затты жөндеуге және т.б.) мiндеттейдi.
935-бап. Жәбiрленушiнiң кiнәсi мен зиян келтiрген адамның мүлiктiк жағдайын есепке алу
1. Жәбiрленушiнiң терiс пиғылы салдарынан пайда болған зиян өтеуге жатпайды.
2. Егер жәбiрленушiнiң өзiнiң өрескел абайсыздығы зиянның пайда болуына немесе ұлғаюына себеп болса, жәбiрленушi мен зиян келтiрушi кiнәсiнiң дәрежесiне қарай өтеу мөлшерi азайтылуға тиiс.
3. Жәбiрленушi өрескел абайсыздық жасап, зиян келтiрушiнiң кiнәсi болмаған жағдайда, оның жауапкершiлiгi кiнәсiне қарамастан туындаған кезде, егер заң актiлерiнде өзгеше көзделмесе, өтеу мөлшерi азайтылуға тиiс немесе зиянды өтеуден бас тартылуы мүмкiн. Азаматтың өмiрi мен денсаулығына зиян келтiрiлген жағдайда зиянды өтеуден толық бас тартуға жол берiлмейдi.
4. Жәбiрленушiнiң кiнәсi қосымша шығындарды өтеу кезiнде (осы Кодекстiң 937-бабы), азаматтың қайтыс болуы салдарынан залал шеккен адамдарға зиянды
өтеу кезiнде (осы Кодекстiң 940-бабы), сондай-ақ жерлеуге жұмсалған шығындарды өтеу кезiнде (осы Кодекстiң 946-бабы) ескерiлмейдi.
5. Қасақана жасалған әрекеттермен зиян келтiрiлген реттердi қоспағанда, сот азаматтың мүліктік жағдайын ескере отырып, ол келтірілген зиянды өтеу мөлшерін азайта алады.
Параграф 2. Азаматтың өмiрi мен денсаулығына келтiрiлген зиянды өтеу
936-бап. Азаматтың шарттық және өзге де мiндеттемелердi орындау кезiнде өмiрi мен денсаулығына келтiрiлген зиянды өтеу
Азаматтың шарттық мiндеттемелердi, еңбек (қызмет) мiндеттерiн, әскери қызмет мiндеттерiн орындауы кезiнде өмiрi мен денсаулығына келтiрiлген зиян, егер заң актiлерiнде немесе шартта көтерiңкi жауаптылық көзделмесе, осы тараудың ережелерi бойынша өтеледi.
937-бап. Денсаулықты зақымдау арқылы келтiрiлген зиянды өтеудiң көлемi мен сипаты
1. Азаматқа жарақат немесе денсаулығына өзге де зақым келтірілген кезде жәбірленуші жоғалтқан, онда болған не анық иелене алатын табыс (кіріс), сондай-ақ денсаулыққа зақым келтіруден туындаған шығыстар (емделуге, қосымша тамақтануға, дәрілер сатып алуға, протез салғызуға, басқа адамның күтім жасауына, санаторий-курорттық емделуге, арнайы көлік құралдарын сатып алуға, басқа кәсіпке даярлауға және басқалар), егер жәбірленуші көмек пен күтімнің осындай түрлеріне мұқтаж және оларды тегін алмайды деп танылса, өтелуге жатады.
Денсаулықтың зақымдануынан туындаған шығыстарды (емделуге, қосымша тамақтануға, дәрілер сатып алуға, протез салғызуға, басқа адамның күтім жасауына, санаторий-курорттық емделуге, арнайы көлік құралдарын сатып алуға , басқа кәсіпке даярлауға және басқалар), қызметкердің денсаулығына зиян келтірген жұмыс беруші Қазақстан Республикасының Еңбек кодексінде белгіленген шектерде өтейді.
2. Жоғалтқан табысты (кiрiстi) анықтау кезiнде жарақаттануына немесе денсаулығына өзгедей зақым келтiрiлуiне байланысты жәбiрленушiге тағайындалған мүгедектiк бойынша жәрдемақы, денсаулығына зиян келтiргенге дейiн де, одан кейiн де тағайындалған басқа да жәрдемақы түрлерi, сондай-ақ
зейнетақы төлемдерi өтеу есебiне қосылмайды. Зиянды өтеу есебiне жәбiрленушiнiң денсаулығы зақымданғаннан кейiн алатын табыс та есептелмейдi .
3. Осы бапқа сәйкес жәбiрленушiге тиесiлi өтемнiң көлемi мен мөлшерi заң актiлерiмен немесе шартпен көбейтiлуi мүмкiн.
Ескерту. 937-бапқа өзгеріс енгізілді - ҚР 27.04.2015 № 311-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
938-бап. Денсаулықтың зақымдануы салдарынан жоғалтылған табысты ( кiрiстi) анықтау
1. Өтеуге жататын жоғалтылған табыстың (кiрiстiң) мөлшерi жарақаттануына немесе денсаулығының өзгедей зақымдануына дейiнгi не жәбiрленушiнiң кәсiби еңбекке қабiлетiн, ал ол болмаған кезде - жалпы еңбекке қабiлетiн жоғалтуы дәрежелерiне сәйкес, еңбекке жарамдылығынан айырылу басталғанға дейiнгi орташа айлық табысының (кiрiсiнiң) проценттерiмен анықталады.
2. Жоғалтылған табыстың (кiрiстiң) құрамына негiзгi жұмыс орны бойынша да, сондай-ақ қоса атқаратын жұмысы бойынша да еңбек және азаматтық-құқықтық шарттар бойынша еңбекке ақы төлеудiң жеке табыс салығы салынатын барлық түрлерi кiргізіледi. Бiржолғы сипаттағы төлемдер ( пайдаланылмаған демалыс үшiн өтемақылар, жұмыстан босатылған кездегi жұмыстан шығу жәрдемақысы және басқалары) есептелмейдi. Уақытша еңбекке жарамсыздық және жүктілік пен босануға байланысты демалыс кезеңi үшiн төленген жәрдемақы есепке алынады. Кәсiпкерлiк қызметтен алынатын кiрiстер, сондай-ақ авторлық қаламақы жоғалтылған табыстың құрамына кiргізіледi, бұл ретте кәсiпкерлiк қызметтен алынатын кiрiстер мемлекеттік кіріс органы деректерiнiң негiзiнде кіргiзiледi.
Табыстың (кiрiстiң) барлық түрлерi салықтар ұсталғанға дейiн есептелген сомаларда ескерiледi.
3. Орташа айлық табыс (кiрiс) денсаулыққа зақым келтiрудiң не еңбек қабiлетiн жоғалту басталардың алдындағы жұмыстың он екi айындағы табыстың (кiрiстiң) жалпы сомасын он екiге бөлу жолымен есептеледi. Зиян келтiрiлген кезде жәбiрленушi он екi айдан аз уақыт жұмыс iстеген жағдайда орташа айлық табыс (кiрiс) денсаулыққа зақым келтiрудiң алдындағы нақты жұмыс iстелген айларда тапқан табыстың (кiрiстiң) жалпы сомасын осы айлардың санына бөлу жолымен есептеледi.
Жәбiрленушi толық жұмыс iстемеген айлар оның қалауы бойынша толық жұмыс iстеген айлардың алдындағы айлармен ауыстырылады не оларды ауыстыру мүмкiн болмаған жағдайда есептен шығарып тасталады.
4. Жәбiрленушi зиян келтiрiлген кезде жұмыс iстемеген жағдайда оның қалауы бойынша жұмыстан босатылғанға дейiнгi табысы не осы жердегi оның бiлiктiлiгiндегi қызметкер сыйақысының жай мөлшерi ескерiледi, бiрақ ол заң актiлерiмен белгiленген бiр айлық есептiк көрсеткiштiң он еселенген мөлшерiнен кем болмауға тиiс.
5. Егер жәбiрленушiнiң табысында (кiрiсiнде) оған жарақат келтiрiлгенге немесе денсаулығының өзгедей зақымдануына дейiн оның мүлiктiк жағдайын жақсартатын тұрақты өзгерiстер болса (атқаратын қызметi бойынша жалақысы арттырылса, бiршама жоғары ақы төленетiн жұмысқа ауыстырылса, оқу орнын бiтiргеннен кейiн жұмысқа тұрса және жәбiрленушiнiң еңбегiне ақы төлеудiң өзгертiлуiнiң тұрақтылығы немесе өзгеру мүмкiндiгi дәлелденген басқа жағдайларда), оның орташа айлық табысын (кiрiсiн) белгiлеу кезiнде ол алған немесе тиiстi өзгертуден кейiн алуы тиiс болған табыс (кiрiс) қана ескерiледi.
6. Алып тасталды - ҚР 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
Ескерту. 938-бапқа өзгерістер енгізілді - ҚР 2001.12.24 N 276, 2011.03.30 N 424-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 07.11.2014 № 248-V (алғашқы ресми жарияланған күнінен кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
939-бап. Кәмелетке толмаған адамның денсаулығы зақымданған кезде зиянды өтеу
1. Жасы он төртке жетпеген және табысы жоқ кәмелетке толмаған адам (жас бала) жарақат алған немесе денсаулығы өзгедей зақымданған жағдайда зиян үшiн жауапты адамдар денсаулықтың зақымдануына байланысты шығындарды өтеуге мiндеттi.
2. Жәбiрленушiнiң он төрт жасқа толғаннан кейiн, сондай-ақ табысы (кiрiсi) жоқ он төрттен он сегiз жасқа дейiнгi кәмелетке толмағанға зиян келтiрiлген жағдайда зиян үшiн жауапты адамдар денсаулығының зақымдануынан туындаған шығындардан басқа, еңбекке ақы төлеудiң заң актiлерiмен белгiленген он еселенген айлық есептiк көрсеткiштi негiзге ала отырып, оның еңбек қабiлетiн жоғалтуына және еңбек қабiлетiнiң төмендеуiне байланысты зиянды да жәбiрленушiге өтеуге мiндеттi.
Егер денсаулығы зақымданған кезде кәмелетке толмаған адамның табысы болса, зиян осы табыстың мөлшерi негiзiнде, бiрақ еңбекке ақы төлеудiң заң актiлерiмен белгiленген кемiнде он еселенген айлық есептiк көрсеткiш мөлшерiнде өтеледi.
Еңбек қызметi басталғаннан кейiн жәбiрленушi өзi алатын табысты негiзге ала отырып, бiрақ кемiнде өзi атқаратын қызмет бойынша белгiленген сыйақының немесе өзiнiң жұмыс орны бойынша сол бiлiктiлiктегi қызметкер табысының мөлшерiнде зиян өтемiнiң көбейтiлуiн талап етуге құқылы.
Ескерту. 939-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
940-бап. Азаматтың қайтыс болуы салдарынан залал шеккен адамдарға зиянды өтеу
1. Азамат қайтыс болған жағдайда қайтыс болған адамның асырауындағы немесе ол қайтыс болған күнге дейiн одан жәрдем ақша алуға құқылы болған еңбекке жарамсыз адамдардың, қайтыс болған адамның ол қайтыс болғаннан кейiн туған баласының, сондай-ақ ата-анасының бiреуі, зайыбы не еңбекке қабiлеттiлiгiне қарамастан жұмыс iстемейтiн және қайтыс болған адамның асырауында болған балаларын, немерелерiн, жасы он төртке толмаған не аталған жасқа толса да, медицина органдарының қорытындысы бойынша денсаулық жағдайына байланысты басқа адамның күтуiне мұқтаж аға-iнiлерi мен апа-қарындастарын (жас балаларды) күтумен айналысатын, отбасының басқа да мүшесiнiң зиянды өтетiп алуға құқығы бар.
2. Қайтыс болған адамның асырауында болған және ол қайтыс болғаннан кейiн бес жылдың iшiнде еңбекке жарамсыз болып қалған адамдардың да зиянды өтетiп алуға құқығы бар.
Ата-аналарының бiреуi, зайыбы не жұмыс iстемейтiн және қайтыс болған адамның осы баптың 1-тармағында көрсетiлген балаларын, немерелерiн, аға-iнiлерi мен апа-қарындастарын күтумен айналысатын және күтудi жүзеге асыру кезеңiнде еңбекке жарамсыз болып қалған отбасының басқа мүшесi осы адамдарды күту аяқталғаннан кейiн зиянды өтетiп алу құқығын сақтап қалады.
3. Зиян: кәмелетке толмағандарға - он сегiз жасқа толғанға дейiн, он сегiздегi және одан да ересек жастағы оқушыларға - күндiз оқыту нысанындағы оқу орындарындағы оқуы аяқталғанға дейiн, бiрақ әрi кеткенде жиырма үш жасқа дейiн; Қазақстан Республикасының зейнетақымен қамсыздандыру туралы заңнамасында белгіленген зейнеткерлік жасқа толған адамдарға - өмiр бойы; мүгедектерге - мүгедектiк мерзiмiне; ата-аналарының бiреуiне, жұбайына не
қайтыс болған адамның асырауында болған балаларын, немерелерiн, аға-iнiлерi мен апа-сiңлiлерiн, қарындастарын күтумен айналысатын отбасының басқа мүшесiне - олар он төрт жасқа толғанға дейiн не денсаулық жағдайы өзгергенге дейiн өтеледi.
Ескерту. 940-бапқа өзгерістер енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.04.2019 № 241-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
941-бап. Азамат қайтыс болған жағдайда келтiрiлген зиянды өтеу мөлшерi
1. Азаматтың қайтыс болуына байланысты зиянды өтетуге құқығы бар адамдарға зиян оның көзi тiрi кезiнде өзiнiң асырауына алған немесе алуға құқылы қайтыс болған адамның табысының (кiрiсiнiң) осы Кодекстiң 938- бабының ережелерi бойынша есептелген үлесi мөлшерiнде өтеледi. Осы адамдарға зиянды өтеудi белгiлеген кезде қайтыс болған адамның кiрiстерiнiң құрамына оның табысымен қатар көзi тiрi кезiнде алып жүрген зейнетақысы, ғұмырлық жәрдем ақшасы мен осы сияқты басқа да төлемдер қосылады.
2. Зиянды өтеудiң мөлшерiн анықтаған кезде адамдарға асыраушының қайтыс болуына байланысты тағайындалған жәрдемақылар, асыраушы қайтыс болғанға дейiн де, одан кейiн де тағайындалған басқа да жәрдемақы түрлерi, сондай-ақ табыс, стипендия, зейнетақы төлемдерi ескерiлмейдi.
3. Асыраушының қайтыс болуына байланысты зиянды өтетуге құқығы бар адамдардың әрқайсысына белгiленген өтемнiң мөлшерi, баланың асыраушы қайтыс болғаннан кейiн туылуы; қайтыс болған асыраушының балаларын, немерелерiн, аға-iнiлерi мен апа-қарындастарын күтумен айналысатын адамдарға өтемнiң тағайындалуы (тоқтатылуы) жағдайларын қоспағанда бұдан әрi қайта есептеуге жатпайды.
Өтемнiң көлемi мен мөлшерi заң актiсiмен немесе шартпен көбейiтiлуi мүмкiн.
942-бап. Зиянды өтеу мөлшерiн өзгерту
1. Еңбек қабiлетiн iшiнара жоғалтқан жәбiрленушi, егер оның еңбек қабiлетi оған өтем тағайындалған кезде өзiнде болған еңбек қабiлетiне қарағанда денсаулығына зақым келтiрiлуiне байланысты төмендеп кетсе, зиянды өтеу мiндетi жүктелген адамнан өтем мөлшерiн тиiсiнше көбейтудi кез келген уақытта талап етуге құқылы.
2. Жәбiрленушi денсаулығының зақымдануына байланысты зиянды өтеу мiндетi жүктелген адамдар, егер жәбiрленушiнiң еңбек қабiлетi зиян үшiн өтем тағайындаған кезде өзiнде болған еңбек қабiлетiне қарағанда артып кетсе, өтем мөлшерiн тиiсiнше төмендетудi талап етуге құқылы.
3. Егер зиянды өтеу мiндетi жүктелген азаматтың мүлiктiк жағдайы жақсарса, ал өтемнiң мөлшерi осы Кодекстiң 935-бабының 5-тармағына сәйкес төмендесе, жәбiрленуші зиянды өтеу мөлшерiн көбейтудi талап етуге құқылы.
4. Зиян келтiрiлген азаматтың талабы бойынша, егер зиянды өтеушiнiң мүлiктiк жағдайы зиянды өтеу тағайындалған кездегiмен салыстырғанда мүгедектiгіне не зейнет жасына толуына байланысты нашарласа, сот зиянды өтеу мөлшерiн төмендетуi мүмкiн (осы Кодекстiң 935-бабының 5-тармағы).
943-бап. Күнкөрiс құнының артуына байланысты зиянды өтеуді ұлғайту
Азаматтарға денсаулығының зақымдануына немесе жәбiрленушiнің қайтыс болуына байланысты төленетiн зиянды өтеу сомалары инфляцияның болжамды деңгейінің орташа мәніне пропорционалды түрде жыл сайын ұлғайтылады.
Ескерту. 943-бап жаңа редакцияда - ҚР 27.04.2015 № 311-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
944-бап. Зиянды өтеу жөнiндегi төлемдер
1. Жәбiрленушiнiң еңбекке қабiлеттілігiнiң төмендеуiне немесе қайтыс болуына байланысты зиянды өтеу ай сайынғы төлемдермен жүргiзiледi.
Жәбірленушінің еңбек (қызметтік) міндеттерін атқару кезінде жоғалтылған табысы бөлігінде зиянды өтеу еңбекке қабілеттілігінен айырылу дәрежесін белгілеу мерзіміне, бірақ оның Қазақстан Республикасының зейнетақымен қамсыздандыру туралы заңнамасында белгіленген зейнеткерлік жасқа жетуінен аспайтын мерзімге жүзеге асырылады.
Бұл ретте, жоғалтылған табыс (кіріс) бөлігінде зиянды өтеу сомасынан " Қазақстан Республикасында зейнетақымен қамсыздандыру туралы" Қазақстан Республикасының белгіленген мөлшерде және тәртіппен міндеттіЗаңында зейнетақы жарналары ұсталады және бірыңғай жинақтаушы зейнетақы қорына аударылады.
Дәлелдi себептер болған кезде сот зиян келтiрушiнiң мүмкiндiктерiн ескере отырып, өтеттіруге құқығы бар азаматтың талап етуі бойынша оған тиесiлi төлемдердi бiржолғы, бiрақ үш жылдан аспайтындай етіп тағайындауы мүмкiн.
2. Қосымша шығындарды өндiрiп алу медициналық сараптама қорытындысының негiзiнде белгiленген мерзiмдердiң шегiнде алдағы уақытқа, сондай-ақ қызмет көрсету мен мүлiктiң құнына алдын ала ақы төлеу қажет болған жағдайда (жолдама сатып алу, жол ақысын төлеу, арнайы көлiк құралдарына ақы төлеу және т.б.) жүргiзiлуi мүмкін.
3. Жәбiрленушi заң актiлерiне сәйкес мiндеттеменi тоқтатуды немесе мерзiмiнен бұрын орындауды талап етуге құқығы болған жағдайларда, мұндай талап тиiстi мерзiмдiк төлемдердi капиталдандыру жолымен қанағаттандырылады.
Ескерту. 944-бапқа өзгеріс енгізілді - ҚР 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 02.08.2015 № 342-V 01.01.2016 бастап қолданысқа енгізіледі) Заңдарымен.
945-бап. Заңды тұлға тоқтатылған ретте зиянды өтеу
1. Өмiр мен денсаулыққа келтiрiлген зиян үшiн белгiленген тәртiппен жауапты болып танылған заңды тұлға қайта ұйымдастырылған жағдайда тиiстi төлемдердi төлеу жөнiндегi мiндетiн оның құқықтық мирасқоры алады. Оған зиянды өтеу жөнiнде талаптар қойылады.
2. Өмір мен денсаулыққа келтiрiлген зиян үшiн белгіленген тәртiппен жауапты болып танылған заңды тұлға таратылған жағдайда тиiстi төлемдер заң немесе өзге де нормативтiк құқықтық актiлермен белгiленген ережелер бойынша оларды жәбiрленушiге төлеу үшiн капиталдандырылуы тиіс.
3. Таратылатын заңды тұлғада мүлiктiң болмауы немесе жеткiлiксiз болуы себептi төлемдердi капиталдандыруды жүргiзу мүмкiн болмаған жағдайларда тағайындалған сомаларды жәбiрленушiге заң актiлерiнде белгiленген тәртiппен мемлекет төлейдi.
4. Қызметкерлердің өмірі мен денсаулығына келтірілген зиянды банкроттық салдарынан таратылған заңды тұлғалардың өтеуі жөніндегі төлемдерді капиталдандыру кезеңі аяқталғаннан кейін Қазақстан Республикасының азаматына Қазақстан Республикасының Үкіметі белгілеген тәртіппен ай сайынғы төлемдер түрінде әлеуметтік көмек жүзеге асырылады, олардың мөлшерлері инфляцияның болжамды деңгейінің орташа мәніне пропорционалды түрде жыл сайын ұлғайтылады.
Ескерту. 945-бапқа өзгерістер енгізілді - ҚР 2011.03.30 N 424-IV (2011.01.01 бастап қолданысқа енгізіледі); 27.04.2015 № 311-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
946-бап. Жерлеуге жұмсалған шығындарды өтеу
Жәбiрленушiнiң қайтыс болуына байланысты зиян үшiн жауапты адамдар жерлеуге қажеттi шығындарды осы шығындарды көтерген адамға өтеуге мiндеттi.
Осы шығындарды көтерген азаматтардың жерлеуге арнап алған жәрдемақысы зиянды өтеу есебiне қосылмайды.
Параграф 3. Тауарлардың, жұмыстардың, қызмет көрсетулердiң жеткiлiксiздiгi салдарынан келтiрiлген зиянды өтеу
947-бап. Тауарлардың, жұмыстардың, қызмет көрсетулердiң жеткiлiксiздiгi салдарынан келтiрiлген зиянды өтеу негiздерi
Тауарлардың (жұмыстардың, қызмет көрсетулердiң) конструкциялық, рецептуралық немесе өзгедей жеткiлiксiздiгi салдарынан, сондай-ақ тауар ( жұмыс, қызмет көрсету) туралы анық емес немесе жеткiлiксiз ақпараттың салдарынан азаматтың өмiрiне, денсаулығына немесе мүлкiне не заңды тұлғаның мүлкiне келтiрiлген зиян, олардың кiнәсiне және жәбiрленушiнiң олармен шарттық қатынастарда болғандығына немесе болмағандығына қарамастан, сатушының немесе дайындаушының (орындаушының) өтеуiне жатады. Осы ереже тек тауарды (жұмысты, қызмет көрсетудi) тұтынушылық мақсаттарда сатып алған жағдайларда ғана қолданылады.
948-бап. Тауарлардың, жұмыстардың, қызмет көрсетулердiң кемшiлiгi салдарынан келтiрiлген зиян үшiн жауапты тұлғалар
1. Тауардың кемшiлiгi салдарынан келтірілген зиянды жәбiрленушiнiң таңдауы бойынша тауарды сатушы немесе дайындаушы өтеуге тиiс.
2. Жұмыстың немесе қызмет көрсетулердiң кемшiлiгi салдарынан келтiрiлген зиянды орындаушы өтеуге тиiс.
3. Тауардың (жұмыстың, қызмет көрсетудiң) қасиеттерi мен оларды пайдалану ережелерi туралы толық немесе анық ақпарат бермеудiң салдарынан келтiрiлген зиян осы баптың 1, 2-тармақтарының ережелерiне сәйкес өтелуге тиiс .
949-бап. Тауарлардың, жұмыстардың, қызмет көрсетулердiң кемшiлiгi салдарынан келтiрiлген зиянды өтеу мерзiмдерi
1. Тауардың (жұмыстың, қызмет көрсетудiң) кемшiлiгiнен туындаған зиян, егер ол тауардың (жұмыстың, қызмет көрсетудiң) жарамдылығының (қызметтiң) белгiленген мерзiмдерi iшiнде келтiрiлсе өтелуге, ал жарамдылық (қызмет) мерзiмi белгiленбесе - тауарды (жұмыс, қызмет көрсету) өндiрiлген күннен бастап он жыл iшiнде өтелуге тиiс.
2. Зиян: 1) егер заң актiлерiнiң талаптары бұзыла отырып жарамдылық (қызмет)
мерзiмi белгiленбесе; 2) егер сатып алушы (тұтынушы) жарамдылық (қызмет) мерзiмi өткеннен
кейiн қажеттi iс-әрекеттер туралы және аталған iс-әрекеттердi орындамаған жағдайда мүмкiн болатын зардаптар туралы ескертiлмесе, осы баптың 1- тармағында аталған мерзiмдер шегiнен тыс өтелуге тиiс.
950-бап. Тауарлардың, жұмыстардың, қызмет көрсетулердiң кемшiлiктерi салдарынан келтiрiлген зиян үшiн жауапкершiлiктен босату негiздерi
Тауар сатушы немесе дайындаушы, жұмысты немесе қызмет көрсетудi орындаушы, егер зиян дүлей күштiң немесе тұтынушының тауарды (жұмыстың, қызмет көрсетудiң нәтижелерiн) пайдалану немесе оларды сақтау ережелерiн бұзуы салдарынан пайда болғанын дәлелдеген жағдайларда ғана жауапкершiлiктен босатылады.
Параграф 4. Моральдық зиянды өтеу
951-бап. Моральдық зиянды өтеу
1. Моральдық зиян – жеке тұлғалардың өзiндiк мүлiктiк емес игiлiктерi мен құқықтарының бұзылуы, кемсiтiлуi немесе олардан айырылуы, оның iшiнде өзiне қарсы құқық бұзушылықтың жасалуы салдарынан жәбiрленушiнiң, ал осындай құқық бұзушылық салдарынан ол қайтыс болған жағдайда – жақын туыстарының , жұбайының (зайыбының) басынан кешірген (төзімін тауысқан, уайымға салған) жан азабы немесе тән азабы (қорлау, ызаландыру, қысым жасау, ашуландыру, ұялту, түңілту, тән қиналуы, залал шегу, қолайсыз жағдайда қалу және т.б.).
2. Моральдық зиянды осы баптың 3-тармағында көзделген жағдайлардан басқа реттерде, зиян келтiрушiнiң кiнәсi болған кезде зиян келтiрушi өтейдi.
3. Зиян келтірушінің кінәсіне қарамастан моральдық зиян мына жағдайларда, егер:
1) зиян азаматтың өмiрi мен денсаулығына жоғары қауiптілiк көзi арқылы келтiрiлсе;
2) зиян азаматқа оның заңсыз сотталуының, заңсыз қылмыстық жауапқа тартылуының, бұлтартпау шарасы ретiнде заңсыз қамауға алуды, үйде қамауда ұстауды немесе ешқайда кетпеуi туралы қолхат алуды қолданудың, қамауда ұстау, психиатриялық емдеу мекемесiне немесе басқа емдеу мекемесiне орналастыру түрiнде әкiмшiлiк жазаны заңсыз қолданудың салдарынан келтiрiлсе;
3) зиян ар-ожданына, қадiр-қасиетi мен iскерлiк беделiне нұқсан келтiретiн мәлiметтер тарату арқылы келтiрiлсе;
4) заң актiлерiнде көзделген өзге де жағдайларда өтеледi. 4. Заң актiлерiнде көзделген жағдайларды қоспағанда, азаматтың мүлiктiк
құқықтарын бұзатын әрекеттер (әрекетсiздiк) арқылы келтiрiлген моральдық зиян өтелуге жатпайды.
Ескерту. 951-бапқа өзгерістер енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
952-бап. Моральдық зиянды өтеу мөлшерi
1. Моральдық зиян ақшалай нысанда өтеледi. 2. Моральдық зиянның мөлшерiн анықтаған кезде жәбірленушінің не оған
қарсы жасалған құқық бұзушылық салдарынан ол қайтыс болған жағдайда жақын туыстарының, жұбайының (зайыбының) келтiрiлген адамгершiлiк залалдың ауырлығын субъективті бағалауы да, сондай-ақ жәбiрленушiнiң не ол қайтыс болған жағдайда оның жақын туыстарының, жұбайының (зайыбының) жан азабы мен тән азабының дәрежесiн дәлелдейтiн объективтi деректер де: қол сұғу объектiсi болған игiлiктiң (өмiр, денсаулық, ар-ождан, қадiр-қасиет, бостандық, тұрғын үйге ешкiмнiң тиіспеуi және т.б.) өмірлiк маңыздылығы; құқық бұзушылық зардаптарының ауырлығы (жақын туыстарын өлтiру, мүгедектiкке алып келген дене жарақатын салу, бас бостандығынан айыру, жұмыстан немесе тұрғын үйден айыру және т.б.); ұятқа қалдыратын жалған мәлiметтер тарату сипаты мен аясы; жәбiрленушiнiң өмiр сүру жағдайлары ( қызметтік, отбасылық, тұрмыстық, материалдық, денсаулық жағдайы, жасы және басқалары), өзге де назар аударуға тұратын мән-жайлар ескерiледi.
3. Моральдық зиян өтелуге тиiс мүлiктiк зиянға қарамастан өтеледi. Ескерту. 952-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен (
алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
48-тарау. Негізсіз баю салдарынан туындайтын міндеттемелер
953-бап. Негiзсiз байлықты қайтару мiндетi
1. Заңдармен немесе мәмiлемен белгiленген негiздерсiз мүлiктi басқа тұлғаның (жәбiрленушiнiң) есебiнен иеленiп алған немесе жинаған тұлға (сатып алушы), осы Кодекстің 960-бабында көзделген жағдайлардан басқа ретте, негiзсiз иеленiп алынған немесе жинақталған мүлiктi (негiзсiз баю) алдыңғысына қайтаруға мiндеттi.
2. Егер мүлiк иеленiп алынған немесе жинақталған негiз кейіннен жоққа шыққанда да, осы баптың 1-тармағында белгiленген мiндет туындайды.
3. Осы тараудың ережелерi негiзсiз баю мүлiктi иеленушiнiң, жәбiрленушiнiң өзiнiң немесе үшiншi тұлғалардың пиғылының нәтижесi не оқиғаның салдары болып табылғанына қарамастан қолданылады.
954-бап. Негiзсiз байлықты қайтару туралы талаптардың азаматтық құқықтарды қорғау туралы басқа талаптармен арақатынасы
Осы Кодексте, басқа да заң актiлерiнде өзгеше белгiленбесе және тиiстi қарым-қатынастар мәнiнен өзгеше туындамаса, осы тараудың ережелерi:
1) жарамсыз мәмiле бойынша орындалғандарды қайтару туралы; 2) меншiк иесiнiң мүлiктi бөгде бiреудiң заңсыз иеленуiнен сұратып алуы
туралы; 3) мiндеттемедегi бiр тараптың екiншiсiне осы мiндеттемеге байланысты
орындалғандарды қайтару туралы; 4) зиянды, оның iшінде байыған тұлғаның терiс пиғылынан келтiрiлген өтем
туралы талаптарға да қолданылуға тиiс.
955-бап. Негiзсiз байлықты заттай қайтару
1. Мүлiктi иеленушiнiң негiзсiз байлығын құрайтын мүлiк жәбiрленушiге заттай қайтарылуға тиiс.
2. Мүлiктi иеленушi баюының негiзсiздiгi туралы ол бiлгеннен немесе бiлуге тиiстi болғаннан кейiн болған, оның iшiнде негiзсiз иеленiлген немесе жинақталған қандай болса да мүлiктiң кездейсоқ кем шыққаны немесе бүлiнгенi үшiн жәбiрленушiнiң алдында жауап бередi. Бұған дейiн ол тек жасырын ниетi мен өрескел абайсыздығы үшiн ғана жауап бередi.
956-бап. Негізсіз байлықтың құнын өтеу
1. Негiзсiз алынған немесе жинақталған мүлiктi заттай қайтарып беру мүмкін болмаған жағдайда мүлікті иеленуші жәбiрленушiге осы мүлiктiң оны алған кездегi нақты құнын өтеуi, сондай-ақ егер мүлiктi иеленушi оның құнын баюдың негiзсiздiгi туралы бiлгеннен кейiн дереу өтемесе, мүлiк құнының кейiнгi өзгеруi арқылы келтiрiлген шығындарды өтеуге тиiс.
2. Басқаның мүлкiн не басқаның қызмет көрсетулерiн негiзсiз уақытша пайдаланған (оны иелену ниетiнсiз) адам жәбiрленушiге пайдалану тоқтатылған кездегi және оның болған жерiндегi бағамен осындай пайдалану салдарынан жинақтағанын өтеуге тиiс.
957-бап. Құқықты басқа тұлғаға негiзсiз берудiң зардабы
Талаптарын беру арқылы немесе өзiне өзге де түрде тиесiлi құқығын жоқ немесе жарамсыз мiндеттеме негiзiнде басқа тұлғаға берген тұлға өзiнiң бұрынғы жағдайын қалпына келтiрудi, оның iшiнде берiлген құқықты куәландыратын құжаттардың өзiне қайтарылуын талап етуге құқылы.
958-бап. Жәбiрленушiге алынбаған табыстарды өтеу
1. Мүлiктi негiзсiз алған немесе жинақтаған тұлға мұндай баюдың негiзсiздiгi туралы бiлген немесе бiлуге тиiстi болған уақыттан бастап осы мүлiктен өзi алған немесе алуға тиiстi болған барлық кiрiстердi жәбiрленушiге қайтаруға немесе өтеуге мiндеттi.
2. Негiзсiз ақшалай баюдың сомасына ақшаны иемденушiге ақша алудың немесе жинақтаудың негiзсiздiгi туралы бiлген немесе бiлуге тиiстi болған уақыттан бастап бөгде ақшаны пайдаланғаны үшiн тұрақсыздық айыбы есептелуге тиіс.
959-бап. Қайтарылуға жататын мүлікке шыққан шығындарды өтеу
Негiзсiз алынған немесе жинақталған мүлiктi қайтарған (осы Кодекстiң 955- бабы) немесе оның құнын өтеген кезде (осы Кодекстiң 956-бабы) мүлiктi иемденушi өзi алған пайданы есептей отырып, кiрiстi қайтаруға өзi мiндеттi болған (осы Кодекстiң 958-бабы) уақыттан бастап мүлiктi ұстауға және сақтауға қажеттi шығындарды өтеудi жәбiрленушiден талап етуге құқылы. Шығындарды өтеу құқығы мүлiктi иемденушi қайтарылуға жататын мүлікті қасақана ұстаған жағдайларда жойылады.
960-бап. Қайтарылуға жатпайтын негiзсiз байлық
Негiзсiз байлық ретiнде:
1) егер мiндеттемеде өзгеше көзделмесе, мiндеттеменi орындау үшiн оны орындау мерзiмi басталғанға дейiн берiлген мүлiк;
2) талап ету мерзiмi өткеннен кейiн мiндеттеменi орындау үшiн берiлген мүлiк;
3) азаматқа оның тарапынан терiс пиғыл болмаған жағдайда күнкөрiске арналған қаражат ретiнде (жалақы, авторлық сыйақы, өмiрiне немесе денсаулығына келтiрiлген зиянды өтеу, зейнетақы, алименттер және т.б.) берілген және иемденушi пайдаланған ақша сомасы және өзге де мүлiк;
4) егер иемденушi мүлiктiң қайтарылуын талап еткен тұлғаның мiндеттеменiң жоқтығы туралы бiлгендiгiн не мүлiктi қайырымдылық мақсатында бергенiн дәлелдесе, болмаған мiндеттеменi атқару үшiн берiлген ақша сомасы мен өзге мүлiк қайтарылуға жатпайды.
5 бөлiм Интеллектуалдық меншік құқығы 49-тарау. Жалпы ережелер
961-бап. Интеллектуалдық меншiк құқығының объектiлерi
1. Интеллектуалдық меншiк құқығының объектiлерiне: 1) интеллектуалдық шығармашылық қызметтiң нәтижелерi; 2) азаматтық айналымға қатысушыларды, тауарларды, жұмыстарды немесе
қызмет көрсетулердi дараландыру құралдары жатады. 2. Интеллектуалдық шығармашылық қызметтiң нәтижелерiне: 1) ғылым, әдебиет және өнер туындылары;
2) эфирлiк және кәбiлдiк хабар тарату ұйымдарының орындаушылығы, қойылымдары, фонограммалары мен хабарлары;
3) өнертабыс, пайдалы үлгiлер, өндiрiстiк үлгiлер; 4) селекциялық жетiстiктер; 5) интегралдық микросызба топологиялары; 6) ашылмаған ақпарат, оның iшiнде өндiрiс құпиялары (ноу-хау); 7) осы Кодексте немесе өзге де заң актiлерiнде көзделген реттерде интеллектуалдық шығармашылық қызметтiң басқа да нәтижелерi
жатады. 3. Азаматтық айналымға қатысушыларды,тауарларды, жұмыстарды немесе
қызмет көрсетулердi дараландыру құралдарына: 1) фирмалық атаулар; 2) тауарлық белгiлер (қызмет көрсету белгiлерi); 3) тауарлар шығарылатын жерлердің атаулары (шығатын жерін көрсету);
4) осы Кодексте және заң актiлерiнде көзделген реттерде азаматтық айналымға қатысушылардың, тауарлар мен қызмет көрсетулердiң басқа да дараландыру құралдары жатады.
Ескерту. 961-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
962-бап. Интеллектуалдық меншiк объектiлерiне құқықтың пайда болу негiздерi
Интеллектуалдық меншiк объектiлерiне құқық оларды құру фактiсiнiң күшiмен не осы Кодексте немесе өзге де заң актiлерiнде көзделген жағдайлар мен тәртiп бойынша уәкiлеттi мемлекеттiк органның құқықтық қорғауды беруi нәтижесiнен туындайды.
963-бап. Интеллектуалдық меншiк объектiлерiне жеке мүлiктiк емес және мүлiктiк құқықтар
1. Интеллектуалдық шығармашылық қызмет нәтижелерінің авторлары осы нәтижелерге қатысты жеке мүлiктiк емес және мүлiктiк құқықтарға ие болады.
Жеке мүлiктiк емес құқықтар, оның мүлiктiк құқығына қарамастан, авторға тиесiлi болады және оның мүлiктiк құқығы басқа тұлғаның интеллектуалдық шығармашылық қызметiнiң нәтижелерiне ауысқан жағдайда өзiнде сақталып қалады.
2. Азаматтық айналымға қатысушыларды, тауарларды немесе қызмет көрсетулердi дараландыру құралдарына (бұдан әрi - дараландыру құралдары) арналған құқық иелерi осы құралдарға қатысты мүлiктiк құқықтарға ие болады.
3. Интеллектуалдық шығармашылық қызмет нәтижесiнiң авторы болып танылу құқығы (авторлық құқық) жеке мүлiктiк емес құқық болып табылады және оған шығармашылық еңбегiмен интеллектуалдық шығармашылық қызметтiң нәтижесiн жасаған адам ғана ие бола алады.
Авторлық құқықты иелiктен айыруға және басқа адамға беруге болмайды. Егер нәтиже екi немесе одан да көп адамның бiрлескен авторлығымен
жасалса, олар тең авторлар болып танылады. Тұтастай алғанда туындының тең авторлары болып танылатын адамдар тобы интеллектуалдық меншiктiң жекелеген объектiлерiне қатысты заң актiлерiмен шектелуi мүмкiн.
964-бап. Интеллектуалдық меншiк объектiлерiне айрықша құқықтар
1. Интеллектуалдық шығармашылық меншiк объектiсiн оның иесiнiң өз қалауы бойынша кез келген әдiспен пайдалануға мүлiктiк құқығы интеллектуалдық шығармашылық қызметтiң нәтижесiне немесе дараландыру құралына айрықша құқық болып танылады.
Айрықша құқықтар объектiсiн басқа тұлғалардың пайдалануына құқық иеленушінің келісімімен не Қазақстан Республикасының заңдарында көзделген өзге де жағдайларда жол берiледi.
2. Интеллектуалдық меншiк объектiсiне айрықша құқықты иеленуші, егер ол осы Кодекстің және өзге де заң актілерінің ережелеріне қайшы келмесе, осы құқықты басқа адамға толық немесе iшiнара беруге, интеллектуалдық меншiк объектiсiн пайдалануға рұқсат етуге және оны өзгедей түрде пайдалануға құқылы.
3. Айрықша құқықтарды шектеуге, осы құқықтарды жарамсыз деп тануға және оларды тоқтатуға (жоюға) осы Кодексте және өзге де заң актiлерiнде белгiленген жағдайларда, шектер мен тәртiп бойынша жол берiледi.
Ескерту. 964-бапқа өзгеріс енгізілді - ҚР 07.04.2015 № 300-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
965-бап. Айрықша құқықтардың басқа адамға ауысуы
1. Егер осы Кодексте немесе өзге де заңнамалық актiлерде өзгеше көзделмесе, зияткерлік меншiк объектісіне айрықша құқықтарды олардың құқық иелерi шарт бойынша толық немесе iшiнара басқа адамға беруi мүмкiн, сондай-ақ мұрагерлiк бойынша әмбебап құқықтық мирасқорлық тәртiбiмен және заңды тұлғаның – құқық иесiнiң қайта ұйымдастырылуы нәтижесiнде ауысады.
Айрықша құқықтардың берiлуi авторлық құқық пен өзге де мүлiктiк емес құқықтардың жүзеге асырылуын шектемеуге тиiс. Мұндай құқықтарды беру немесе шектеу туралы шарттың талаптары маңызсыз болады.
2. Басқа адамға оның қолданылуы кезеңiнде шектеулi уақытқа айрықша құқық беруді көздейтін шартқа лицензиялық шарт туралы ережелер қолданылады (осы Кодекстiң 966-бабы).
Ескерту. 965-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
966-бап. Лицензиялық шарт
1. Лицензиялық шарт бойынша интеллектуалдық шығармашылық қызметтiң нәтижесiне немесе дараландыру құралына айрықша құқықты иеленушi тарап (
лицензиар) екiншi тарапқа (лицензиатқа) интеллектуалдық меншiктiң тиiстi объектiсiн белгiлi бiр әдiспен уақытша пайдалану құқығын бередi.
Лицензиялық шарт ақылы болып саналады. 2. Лицензиялық шартта лицензиатқа:
1) интеллектуалдық меншiк объектiсiн лицензиардың оны пайдалану мүмкiндiгi мен лицензияны басқа адамға беру құқығын сақтай отырып пайдалану құқығын (жай, ерекше емес лицензия);
2) интеллектуалдық меншiк объектiсiн лицензиардың оны пайдалану мүмкіндігін сақтамай және лицензияны басқа адамдарға беру құқығынсыз пайдалану құқығын (айрықша лицензия);
3) интеллектуалдық меншік объектісін пайдаланудың заң актiлерiне қайшы келмейтiн басқа да жағдайларын беру көзделуi мүмкін.
Егер лицензиялық шартта өзгеше көзделмесе, лицензия жай (ерекше емес) деп ұйғарылады.
3. Лицензиаттың интеллектуалдық меншiк объектiсiн пайдалану құқығын басқа адамға беруi туралы шарт қосалқы лицензиялық шарт болып танылады. Лицензиат қосалқы лицензиялық шартты тек лицензиялық шартта көзделген жағдайларда ғана жасауға құқылы.
Лицензиардың алдында қосалқы лицензиаттың iс-әрекетi үшiн, егер шартта өзгеше көзделмесе, лицензиат жауапты болады.
Ескерту. 966-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( қолданысқа енгізілу тәртібін 2-баптан қараңыз).
967-бап. Интеллектуалдық шығармашылық қызметтiң нәтижелерiн жасау және пайдалану туралы шарт
1. Автор шарт бойынша туындыны, өнертабысты немесе интеллектуалдық шығармашылық қызметтiң өзге де нәтижесiн жасау және өзінің жұмыс берушісі болып табылмайтын тапсырысшыға оны пайдаланудың айрықша құқығын беруге өзiне мiндеттеме алуы мүмкiн.
2. Осы баптың 1-тармағында көзделген шарт интеллектуалдық шығармашылық қызметтiң жасалуға тиiстi нәтижесiнiң сипатын, сондай ақ оның пайдаланудың мақсаттарын не әдістерін белгілеуге тиiс.
3. Шарттың белгiлi бiр түрдегi не белгiлi бiр саладағы зияткерлік шығармашылық қызметтiң нәтижелерiн жасауға автордың құқығын шектейтiн талаптары маңызсыз болады.
Ескерту. 967-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
968-бап. Айрықша құқық және меншiк құқығы
Интеллектуалдық шығармашылық қызметтiң нәтижесiне немесе дараландыру құралына, мұндай нәтиже немесе дараландыру құралы көрсетiлген материалдық объектiге меншiк құқығына қарамастан, айрықша құқық қолданылады.
969-бап. Айрықша құқықтардың қолданылу мерзiмi
1. Интеллектуалдық меншiк объектiсiне айрықша құқық осы Кодексте немесе өзге де заң актiлерiнде көзделген мерзiм iшiнде қолданылады.
Заң актiлерiнде мұндай мерзiмдi ұзартудың мүмкiндiгi көзделуі мүмкін. 2. Интеллектуалдық шығармашылық қызметтің нәтижелеріне жеке мүліктік
емес құқық мерзімсіз қолданылады. 3. Заң актiлерiнде көзделген жағдайларда айрықша құқықтың қолданылуы
оны белгiлi бiр уақыт iшiнде қолданбаудың салдарынан тоқтатылуы мүмкiн.
970-бап. Айрықша құқықтарды қорғау әдiстерi
1. Айрықша құқықтарды қорғау осы Кодекстiң 9-бабында көзделген әдiстермен жүзеге асырылады. Айрықша құқықтарды қорғау:
1) пайдалану арқылы айрықша құқықты бұзған материалдық объектiлердi және осындай бұзушылық нәтижесiнде жасалған материалдық объектiлердi алып қою;
2) жiберiлген кемшiлiктер туралы, оған бұзылған құқықтың кiмге қатысты екендiгi туралы мәлiметтердi қоса отырып, мiндеттi жариялау жолымен;
3) заң актiлерiнде көзделген өзге әдiстермен де жүзеге асырылуы мүмкiн. 2. Интеллектуалдық шығармашылық қызметтiң нәтижелерi мен дараландыру
құралдарын пайдалану туралы шарттар бұзылған жағдайда мiндеттемелердi бұзғаны үшiн жауапкершілiк туралы жалпы ережелер қолданылады (осы Кодекстiң 20-тарауы).
50-тарау. Авторлық құқық
971-бап. Авторлық құқықпен қорғалатын туындылар (авторлық құқық объектiлерi)
1. Авторлық құқық шығармашылық қызмет нәтижесi болып табылатын ғылым, әдебиет және өнер туындыларына олардың бағытына, мазмұны мен маңызына, сондай-ақ оларды білдіру әдісі мен нысанына қарамастан қолданылады.
2. Авторлық құқық халыққа таратылған (жарияланған, жарыққа шыққан, басып шығарылған, көпшiлiк алдында орындалған, көпшiлiкке көрсетiлген), сондай-ақ халыққа таратылмаған туындыларға қандай да бiр объективтi нысанда:
1) жазбаша (қолжазба, машинаға басылған, нота жазбасы және т.б.); 2) ауызша (көпшiлiк алдында айту, көпшiлiк алдында орындау және т.б.); 3) дыбыс немесе бейне жазу (механикалық, цифрлық, магнитті, оптикалық
және т.б.); 4) бейнелеу (сурет, эскиз, картина, жоспар, сызба, кино, теле, бейне немесе
фото кадр және т.б.); 5) көлемдiк-кеңiстiктi (мүсiндеме, модель, макет, құрылыс және т.б.); 6) өзге де нысандарда қолданылады.
3. Осы баптың 1-тармағында аталған белгiлерi бар және дербес пайдаланылуы мүмкiн туындының бiр бөлiгi (оның атауын, кейiпкерлердiң атауларын қоса) авторлық құқық объектiсi болып табылады.
4. Авторлық құқық идеялардың, тұжырымдамалардың, принциптердiң, әдiстердiң, жүйелердiң, процестердiң, жаңалықтардың, фактiлердiң жеке өздерiне қолданылмайды.
Ескерту. 971-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
972-бап. Авторлық құқық объектiлерiнiң түрлерi
1. Авторлық құқық объектiлерi мыналар болып табылады: 1) әдеби туындылар; 2) драмалық және музыкалық-драмалық туындылар; 3) сценарийлiк туындылар; 4) хореография және пантомима туындылары; 5) мәтiндi немесе мәтiнсiз музыкалық туындылар; 6) аудио-бейне туындылар, радио туындылар; 7) кескiндеме, мүсiн, графика туындылары мен басқа да бейнелеу өнерiнiң
туындылары; 8) қолданбалы өнер туындылары; 9) сәулет, қала құрылысы, дизайн және бау-саябақ өнерi туындылары;
10) фотосурет туындылары және фотосуретке ұқсас әдiстермен алынған туындылар;
11) географияға, топографияға және басқа ғылымдарға қатысты карталар, жоспарлар, эскиздер, безендiрмелер мен үш өлшемдi туындылар;
12) ЭЕМ-ге арналған бағдарламалар;
13) өзге де туындылар. 2. ЭЕМ-ге арналған бағдарламаларды қорғау кез келген тiлде және кез келген
нысанда көрсетiле алатын, оларға негiзгi мәтiнді және объектiлiк кодты қоса алғанда, ЭЕМ (оның iшiнде операциялық жүйелер) бағдарламаларының барлық түрлерiне қолданылады.
3. Авторлық құқық объектiлерiне, сондай-ақ: 1) туынды шығармалар (аудармалар, өңдеулер, аннотациялар, рефераттар,
түйiндеулер, шолулар, инсценировкалар, музыкалық аранжировкалар және ғылым, әдебиет пен өнер туындыларының басқа да қайта өңделiмдерi);
2) жинақтар (энциклопедиялар, антологиялар, деректер базалары) және басқа да iрiктелу және (немесе) материалдардың орналасуы бойынша шығармашылық еңбек нәтижесі болып саналатын құрастырылған туындылар жатады.
Туынды және құрастырылған шығармалар оларға негiз болған немесе олар қамтыған шығармалардың авторлық құқық объектiлерi болу-болмауына қарамастан авторлық құқықпен қорғалады.
Ескерту. 972-бапқа өзгерістер енгізілді - ҚР 2005.11.22. N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
973-бап. Авторлық қатынастарды құқықтық реттеу
Авторлық қатынастар осы Кодекспен және авторлық құқық пен сабақтас құқықтар туралы өзге де заң актiлерiмен, ал оларда көзделген жағдайларда өзге де заң актiлерiмен реттеледi.
974-бап. Авторлық құқық объектiлерi болып табылмайтын туындылар
Мыналар авторлық құқық объектiлерi болып табылмайды: 1) ресми құжаттар (заңдар, сот шешiмдерi, заң шығару, әкiмшiлiк, сот және
дипломатиялық сипаттағы өзге де мәтiндер), сондай-ақ олардың ресми аудармалары;
2) мемлекеттiк рәмiздер мен белгiлер (жалаулар, елтаңбалар, ордендер, ақша белгiлерi және өзге де мемлекеттiк рәмiздер мен белгiлер);
3) халық шығармашылығының туындылары; 4) ақпараттық сипаттағы оқиғалар мен фактiлер туралы хабарлар.
975-бап. Ресми құжаттардың, мемлекеттiк рәмiздер мен белгiлердiң жобаларына құқық
1. Ресми құжаттардың, мемлекеттiк рәмiздер мен белгiлердiң жобаларына авторлық құқыққа жобаларды жасаған адам (жасаушы) ие болады.
Ресми құжаттардың, рәмiздер мен белгiлердiң жобаларын жасаушылар, егер оны жасауға тапсырма берушi оған тыйым салмаса, ондай жобаларды жариялауға құқылы. Жобаны жариялаған жағдайда оны жасаушылар өз есiмiн көрсетуге құқылы.
2. Жобаны, жасаушының келiсiмiнсiз, егер бұл жобаны автор жарияласа немесе тиiстi органға жiберсе, оны ресми құжат дайындау үшiн құзыреттi органның пайдалануы мүмкiн.
Ресми құжаттарды, мемлекеттiк рәмiздердi немесе белгiлердi жобаның негiзiнде дайындаған кезде оған ресми құжатты, мемлекеттiк рәмiздi немесе белгiнi дайындауды жүзеге асырушы орган өз қалауы бойынша толықтырулар мен өзгерiстер енгiзуi мүмкiн.
3. Құзыреттi орган жобаны қабылдағаннан кейiн ол әзiрлеушiнiң есiмi көрсетiлмей-ақ және авторлық сыйақы төленбестен пайдаланылуы мүмкiн.
Ескерту. 975-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
976-бап. Авторлық құқықты қорғау белгiсi
1. Айрықша авторлық құқық иесi өз құқықтары туралы мәлiмдеу үшiн туындының әрбiр данасына салынған және үш элементтен:
1) қоршауға алынған латынша "С" әрпiнен; 2) айрықша авторлық құқықтар иесiнiң есiмiнен (атауынан);
3) туындының бiрiншi жарияланған жылынан тұратын авторлық құқықты қорғау белгісін пайдалануы мүмкін.
2. Егер өзге дәлел болмаса, қорғау белгiсiнде көрсетiлген адам айрықша авторлық құқықтың иесi болып саналады.
977-бап. Автордың жеке мүлiктiк емес құқықтары
1. Туынды авторының мынадай жеке мүлiктiк емес құқықтары болады: 1) туынды авторы ретiнде танылу және оны пайдалану кезiнде осы туындыға
басқа адамдардың авторлығын тануды болғызбайтын нақ осындай тануды талап ету құқығы (авторлық құқық);
2) туындыны өз атынан, бүркеншiк атпен немесе жасырын атпен пайдалану құқығы (авторлық атқа құқық);
3) өз туындысына өзгерiстер мен толықтырулар енгiзуге және оның атауын қоса алғанда, туынды жарық көргенде, көпшiлiк алдында орындалғанда немесе өзге түрде пайдаланылғанда автордың келiсiмiнсiз кiмнiң болса да өзгерiстер мен толықтырулар енгiзуiнен туындыны қорғау құқығы (туындыға қол сұқпаушылық құқығы).
Автордың келiсiмiнсiз оның туындысын шығарғанда безендiрулер, алғысөздер, соңғысөздер, түсiнiктемелер немесе қандай да болсын түсiндiрмелер беруге тыйым салынады.
Автор қайтыс болғаннан кейiн оның туындысын қол сұғушылықтан қорғауды өсиетте көрсетiлген адам, ал мұндай нұсқау болмаған жағдайда - автордың мұрагерлерi, сондай-ақ заң актілеріне сәйкес авторлық құқықтарды қорғау жүктелген тұлғалар жүзеге асырады.
4) қызметтік міндеттерін немесе жұмыс берушінің қызметтік тапсырмасын орындау тәртібімен жасалған, туындыларды қоспағанда, туындыға белгiсiз адамдар тобының қол жеткiзуiне жол ашу құқығы (халыққа жария ету құқығы).
2. Автор туындыны халыққа тарату туралы бұрын қабылдаған шешiмiнен бас тартуға құқылы (керi қайтарып алу құқығы), бұл жағдайда жоғалтылған пайдасын қоса алғанда, пайдаланушыға осындай шешiм арқылы келтiрiлген залал өтелуi керек. Егер туынды халыққа жария болып кетсе, автор оны керi қайтарып алатыны туралы көпшiлiкке хабарлауға мiндеттi. Бұл орайда ол туындының бұрын әзiрленген даналарын өз есебiнен айналыстан алып тастауға құқылы.
Осы тармақтың ережелерi қызметтiк туындыларға қолданылмайды. 3. Автордың бiреумен келiсiмi немесе автордың жеке мүлiктiк емес
құқықтарын жүзеге асырудан бас тартуы туралы арызы маңызсыз болады. Ескерту. 977-бапқа өзгерістер енгізілді - ҚР 2012.01.12 N 537-IV (алғашқы
ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
978-бап. Автордың мүлiктiк құқықтары
1. Авторға туындыны кез келген нысанда және кез келген әдiспен пайдалануға айрықша құқықтар берiледi.
2. Автордың туындыны пайдалануға айрықша құқықтары мынадай әрекеттердi жүзеге асыру, жүзеге асыруға рұқсат беру немесе тыйым салу құқығын білдіреді:
1) туындыны қайта жаңғыртуына (қайта жаңғырту құқығы); 2) туындының түпнұсқасын немесе даналарын кез келген әдiспен таратуына:
сатуына, айырбастауына, прокатқа (жалға) беруiне, өзге де операциялар, оның ішінде ашық ақпараттық-коммуникациялық желіде операциялар жасауына ( тарату құқығы);
3) туындыны көпшiлiк алдында көрсетуiне (көпшiлiкке көрсету құқығы); 4) туындыны көпшiлiк алдында орындауына (көпшiлiк алдында атқару
құқығы); 5) жалпыға бiрдей мәлiмдеу үшiн эфирге немесе кабель арқылы хабарлауды
қоса алғанда туындыны көпшiлiкке хабарлауына (көпшiлiкке хабарлау құқығы); 6) туындыны эфирге беруiне (радио және теледидар арқылы тарату), оның
iшiнде туындыны кабель немесе спутниктiк байланыс арқылы таратуына (эфирге хабарлау құқығы);
7) туындыны аударуына (аудару құқығы); 8) туындыны қайтадан жасауына, аранжировкалауына немесе басқаша түрде
өңдеуiне (өңдеу құқығы); 9) қала құрылысы, сәулет, безендiру жобасын iс жүзiне асыруына;
10) заңнамалық актiлерге қайшы келмейтiн өзге де әрекеттерді жүзеге асыруына.
3. Алып тасталды - ҚР 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
4. Егер заңды түрде жарияланған туындының даналары оларды сату арқылы азаматтық айналымға енгiзiлсе, онда Қазақстан Республикасының заң актiлерiнде көзделген жағдайларды қоспағанда, оларды одан әрi таратуға автордың келiсiмiнсiз және авторлық сыйақы төленбестен жол берiледі.
5. Туынды кiрiс келтiру мақсатымен сатылғандығына не оны сату бұған бағытталмағандығына қарамастан, пайдаланылған деп саналады.
6. Туындының (өнертабыстардың, өзге де техникалық, экономикалық, ұйымдастырушылық және т.б. шешiмдердiң) мазмұнын құрайтын ережелердi iс жүзiнде қолдану туындыны авторлық құқық мағынасында пайдалану болмайды.
Ескерту. 978-бапқа өзгерістер енгізілді - ҚР 2005.11.22. N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз), 2012.01.12 N 537-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
979-бап. Туындыны сақтауға беру
1. Туындылардың қолжазбаларын, материалдық негiздегi басқа туындыларды , оның ішінде машинкаға басылғандарын сақтауға беру, егер осылайша сақтауға беру әркiмнiң кiруiне ашық қоймада (депозитарийде) жүргiзiлсе және депозитариймен жасалған шарт бойынша кез келген адамның туынды данасын алуына жол берiлсе, туындыны пайдалану деп танылады.
2. Туындыны сақтауға беру құқық иесiнiң депозитариймен туындыны пайдалану талаптарын белгiлейтiн шарты негiзiнде жүзеге асырылады. Мұндай шарт және депозитарийдiң пайдаланушымен шарты жария болып табылады (осы Кодекстiң 387-бабы).
980-бап. Қазақстан Республикасының аумағында авторлық құқықтың қолданылуы
1. Қазақстан Республикасының аумағында алғаш рет жарияланған немесе жарияланбаған, бiрақ түпнұсқасы қандай болса да объективтi нысанда оның аумағында болған туындыға авторлық құқық Қазақстан Республикасының аумағында қолданылады. Бұл жағдайда автор және (немесе) оның мұрагерлерi, сондай-ақ автордың басқа да құқықтық мирасқорлары өздерiнiң азаматтығына қарамастан авторлық құқық иесi болып танылады.
2. Туындысы шет мемлекет аумағында алғаш рет жарияланған немесе қандай болса да объективті нысанда болған Қазақстан Республикасы азаматтарының да, сондай-ақ олардың құқықтық мирасқорларының да авторлық құқығы танылады.
3. Халықаралық шарттарға сәйкес авторлық құқықты қорғау құқық иесіне берiлген жағдайда туындының шет мемлекет аумағында жариялану фактiсi тиiстi халықаралық шарттардың ережелерiне сай анықталады.
4. Қазақстан Республикасының аумағында туындыны қорғау мақсатында туындының авторы туынды алғаш рет аумағында қорғауға алынған мемлекеттiң заңы бойынша анықталады.
981-бап. Авторлық құқықтың қолданыла бастауы
Туындыға авторлық құқық оның жариялануына қарамастан туындыға үшiншi тұлғалардың қабылдауына қолайлы объективтi нысан берiлген кезден бастап қолданыла бастайды. Ауызша туындыға авторлық құқық оны үшiншi тұлғаға хабарлаған кезден бастап қолданылады.
Егер туынды осы Кодекстiң 980-бабының қолдануына келмейтiн болса, мұндай туындыға авторлық құқық, егер ол Қазақстан Республикасында жүзеге асырылса, туынды алғаш рет жарияланған кезден бастап қорғалады.
982-бап. Авторлық құқықтың қолданылу мерзiмi
1. Авторлық құқық автордың бүкiл өмiрi бойына және ол қайтыс болғаннан кейiн, автор қайтыс болғаннан кейiнгі келесi жылдың бiрiншi қаңтарынан есептегенде, жетпiс жыл бойы күшiнде болады.
2. Бiрлесiп шығарылған туындыға авторлық құқық серiктес авторлардың бүкiл өмiрi бойына және басқа да серiктес авторлардың ең соңғысы қайтыс болғаннан кейін жетпiс жыл бойы күшінде болады.
3. Бүркеншiк атпен немесе жасырын атпен алғаш рет жарыққа шыққан туындыға авторлық құқық туынды жарыққа шыққаннан кейiнгi жылдың бiрiншi қаңтарынан есептегенде жетпiс жыл бойы күшiнде болады.
Егер көрсетiлген мерзім iшiнде жасырын немесе бүркеншiк ат ашылса, осы баптың 1-тармағында белгiленген мерзiм қолданылады.
4. Осы баптың 1-тармағында көрсетiлген мерзiм iшiнде авторлық құқық автордың мұрагерлерiне тиесiлi болады және мұрагерлiк бойынша ауысады, автормен, оның мұрагерлерiмен және одан кейiнгi құқықтық мирасқорларымен шарт бойынша құқық алған құқықтық мирасқорларына тиесiлi болады.
5. Автор қайтыс болғаннан кейін отыз жылдың ішінде алғаш рет жарыққа шыққан туындыға авторлық құқық туынды жарыққа шыққаннан кейiнгi жылдың бiрiншi қаңтарынан есептегенде ол жарыққа шыққаннан кейiнгi жетпіс жыл бойы күшiнде болады.
6. Авторлық, автордың есiмi және туындыға қол сұқпаушылық мерзiмсiз қорғалады.
Ескерту. 982-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
983-бап. Туындының қоғам игiлiгiне ауысуы
1. Туындыға авторлық құқықтың қолданылу мерзiмi бiткеннен кейiн ол қоғамның игiлiгiне айналады.
2. Қоғамның игiлiгi болып табылатын туындыларды кез келген тұлға авторлық сыйақы төлеместен еркiн пайдалана алады. Бұл орайда авторлық құқық , автор есiмiне құқық және туындыға қол сұқпаушылық құқығы сақталуға тиiс.
Ескерту. 983-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
984-бап. Авторлық құқықтарды басқару
1. Құқық иеленушi өзiне тиiстi құқықтарды өз қалауы бойынша жеке жүзеге асыруға құқылы. Өзге адамдар авторлық құқықтарды тек құқық иеленушiнiң келiсiмi бойынша және, өкiлдiктi заңды өкiл жүзеге асыратын осы Кодекстiң 977- бабында көзделген құқықтарды қоспағанда, оларға берiлген өкiлеттiк шегiнде ғана басқара алады.
2. Авторлық және сабақтас құқықтарды иеленушiлер заң актiлерiнде белгiленген тәртiппен авторлық және сабақтас құқықтарды басқару жүктелетiн ұйымдар құра алады.
51-тарау. Сабақтас құқықтар
985-бап. Сабақтас құқықтардың объектiлерi
Сабақтас құқықтар қойылымдарға, орындаушылыққа, фонограммаларға, эфирлiк және кабельдiк хабар таратушы ұйымдардың хабарларына, олардың мақсатына, мазмұны мен маңызына, сондай-ақ олардың көрсетiлу әдiстерi мен нысандарына қарамастан қолданылады.
986-бап. Сабақтас құқықтардың субъектiлерi
1. Орындаушылар, фонограмма жасаушылар мен эфирлік және кабельдік хабар тарату ұйымдары сабақтас құқық субъектiлерi болып табылады.
2. Фонограмма жасаушы, эфирлiк және кабельдiк хабар тарату ұйымдары осы тарауда көзделген құқықтарды фонограмма жазылған не эфирге немесе кабель арқылы берiлетiн туындының орындаушысымен және оның авторымен жасалған шарт бойынша алынған құқықтар шегінде жүзеге асырады.
3. Орындалатын туынды авторларының құқықтары сақталған кезде, орындаушы осы тарауда көзделген және Қазақстан Республикасының заңнамасына сәйкес құқықтарды жүзеге асырады.
4. Сабақтас құқықтардың пайда болуы және жүзеге асырылуы үшiн туындыны тiркеу немесе қандай да бiр басқа формалды талаптарды сақтау талап етiлмейдi.
5. Фонограмма шығарушы және (немесе) орындаушы өз құқықтары туралы жариялау үшiн орындау жазбасының, фонограмманың әрбiр данасында және ( немесе) ол сақталатын әрбiр қорапта орналасатын және үш элементтен:
1) қоршауға алынған латынша "Р" әрпiнен; 2) айрықша сабақтас құқықтар иесiнiң есiмiнен (атауынан);
3) орындау жазбасының, фонограмманың бiрiншi жарияланған жылынан тұратын сабақтас құқықтарды қорғау белгісін пайдалануға құқылы.
6. Егер өзгеше дәлелденбесе, фонограммада және (немесе) оның қорабында есiмi немесе атауы көрсетiлген жеке немесе заңды тұлға фонограмма шығарушы болып танылады.
Ескерту. 986-бапқа өзгерістер енгізілді - ҚР 2005.11.22. N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз); 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
987-бап. Сабақтас құқықтардың қолданылуы
1. Қазақстан Республикасының аумағында алғаш рет орын алған орындаушының орындауға құқығы Қазақстан Республикасының аумағында қолданылады. Бұл жағдайда орындаушының және оның мұрагерлерiнiң, сондай-ақ азаматтығына қарамастан орындаушының өзге де құқықтық мирасқорларының құқықтары танылады.
Орындау алғаш рет шет мемлекеттiң аумағында жүзеге асырылған жағдайда да орындаушының, сондай-ақ оның құқықтық мирасқорларының құқығы танылады.
2. Егер фонограмма жазбасы алғаш рет Қазақстан Республикасында көпшiлiк алдында қайта жаңғыртылса немесе оның даналары көпшілікке таратылса, бұл фонограмма шығарушының құқықтары Қазақстан Республикасының аумағында қолданылады.
Қазақстан Республикасы азаматтарының немесе Қазақстан Республикасының аумағында тұрғылықты жерi немесе тұратын орны бар заңды тұлғалардың да фонограмма шығару құқықтары танылады.
3. Егер ұйымның Қазақстан Республикасының аумағында ресми орналасқан жері болса және хабарларды Қазақстан Республикасы аумағында орналасқан таратқыштар көмегiмен жүзеге асырса, оның эфирлiк немесе кабельдiк хабар таратуды ұйымдастыру құқығы танылады.
4. Өзге де шетелдiк орындаушылардың, фонограммалар шығарушылардың, эфирлiк немесе кәбiлдiк хабар тарату ұйымдарының құқықтары Қазақстан Республикасының аумағында Қазақстан Республикасы бекiткен халықаралық шарттарға сәйкес қорғалады.
Ескерту. 987-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
988-бап. Сабақтас құқықтар субъектiлерiнiң құқықтарын реттеу
Орындаушының, фонограмма шығарушының, эфирлiк және кабельдiк хабар тарату ұйымдарының айрықша және өзге де құқықтарының көлемi мен мазмұнын, сондай-ақ аталған субъектiлердiң айрықша құқықтарын шектеу жағдайлары мен шектерi және оларды бұзғаны үшiн жауапкершiлiк заң актiлерiмен реттеледi.
Ескерту. 988-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
989-бап. Сабақтас құқықтардың қолданылу мерзiмi
1. Орындаушыға қатысты сабақтас құқықтар алғаш рет орындалғаннан кейiн немесе қойылғаннан кейiн жетпiс жыл бойы күшiнде болады. Орындаушының өз аты-жөнiне және орындауды немесе қойылымды бұрмалаудан қорғауға құқықтары мерзiмсiз қорғалады.
2. Фонограмма шығарушыға қатысты сабақтас құқықтар фонограмма алғаш рет жарияланғаннан кейiн жетпiс жыл бойы не, фонограмма бұл мерзiм iшiнде жарияланбаса, ол алғаш рет жазылғаннан кейiн жетпiс жыл бойы күшiнде болады.
3. Эфирлiк хабар тарату ұйымына қатысты сабақтас құқықтар мұндай ұйым эфирге алғаш рет хабар берудi жүзеге асырғаннан кейiн жетпiс жыл бойы күшiнде болады.
4. Кабельдік хабар тарату ұйымына қатысты сабақтас құқықтар мұндай ұйым кабель бойынша алғаш рет хабар берудi жүзеге асырғаннан кейiн жетпiс жыл бойы күшiнде болады.
5. Осы баптың 1-4-тармақтарында көзделген мерзiмдердi есептеу мерзiмi өтуiнiң басталуына негiз болатын заңды факт орын алған жылдан кейiнгi жылдың бiрiншi қаңтарынан басталады.
Ескерту. 989-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
990-бап. Шетелдiк азаматтар немесе шетелдiк заңды тұлғалар болып табылатын орындаушылардың, фонограммалар шығарушылардың, эфирлiк және кабельдік хабар тарату ұйымдарының құқықтары
Шетелдiк азаматтар немесе шетелдiк заңды тұлғалар болып табылатын орындаушылардың, фонограммалар шығарушылардың, эфирлiк және кабельдiк хабар тарату ұйымдарының құқықтары, егер олар өздерiнiң алғашқы қойылымын , орындауын, жазбасын немесе эфирге хабар таратуын Қазақстан
Республикасының аумағынан тыс жерде жүзеге асырса, оның аумағында Қазақстан Республикасы ратификациялаған халықаралық шарттарға сәйкес қолданылады.
Ескерту. 990-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22 . N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
52-тарау. Өнертабысқа, пайдалы модельге, өнеркәсіптік үлгіге құқық
991-бап. Өнертабысты, пайдалы модельді, өнеркәсіптік үлгіні құқықтық қорғау талаптары
1. Өнертабысқа, пайдалы модельге және өнеркәсiптiк үлгiге құқықтар патентпен қорғалады.
2. Жаңа, өнертапқыштық деңгейi бар және өнеркәсiпте қолдануға болатын техникалық шешiм құқықтық қорғау берiлетiн өнертабыс болып танылады.
3. Жаңа және өнеркәсiпте қолдануға болатын техникалық шешім құқықтық қорғау берiлетiн пайдалы модель болып танылады.
4. Бұйымның сыртқы түрiн белгiлейтiн, жаңа, түпнұсқалық болатын көркемдiк-конструкторлық шешім құқықтық қорғау берілетін өнеркәсіптік үлгі болып танылады.
5. Патент алуға құқық туындайтын өнертабыстың, пайдалы модельдің, өнеркәсiптiк үлгiнің патентке қабілеттілік шарттарына қойылатын талаптар " Қазақстан Республикасының Патент Заңы" Қазақстан Республикасының Заңында айқындалады.
6. Патентке қабiлетi жоқ техникалық шешiмдердiң, бұйымдардың көркемдiк-конструкторлық шешiмдерiнiң тiзбесi заң актiлерiмен белгiленедi.
Ескерту. 991-бапқа өзгерістер енгізілді - ҚР 2007.03.02 N 237, 2012.01.12 N 537-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 20.06.2018 № 161-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
992-бап. Өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi пайдалану құқығы
1. Патент иесiнiң өнiмдi қорғалған шешiмдердi қолдану арқылы өндiру, патентпен қорғалған технологиялық процестердi өз өндiрiсiнде қолдану, қорғалған шешiмi бар бұйымдарды сату немесе сатуға ұсыну, тиiстi бұйымдарды
импорттау құқықтарын қоса алғанда, патентпен қорғалған өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi өз қалауы бойынша пайдалануға айрықша құқығы болады.
2. Осы Кодекске немесе басқа заң актiлерiне сәйкес патент иеленушінің құқықтарын бұзу болып табылмайтын пайдалану жағдайларын қоспағанда, басқа адамдардың өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi патент иесiнiң рұқсатынсыз пайдалануға құқығы жоқ.
3. Патенттелген өнертабысты, пайдалы модельдi немесе өнеркәсiптiк үлгiнi қолданып жасалған бұйымдарды рұқсатсыз жасау, қолдану, импорттау, сатуға ұсыну, сату, азаматтық айналымға өзгедей енгiзу немесе осы мақсатпен сақтау, сондай-ақ өнертабысқа патентпен қорғалатын әдiстi қолдану немесе тiкелей өнертабысқа берiлген патентпен қорғалатын әдiс арқылы дайындалған бұйымды азаматтық айналымға енгiзу не осы мақсатпен сақтау патент иесiнiң айрықша құқығын бұзу болып танылады.
Өзгеше дәлелденбейiнше бұйым патенттелген әдiспен жасалған болып саналады.
Ескерту. 992-бапқа өзгерістер енгізілді - ҚР 2007.03.02. N 237; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
993-бап. Патентке берiлетiн құқыққа билiк ету
Ескерту. 993-баптың тақырыбына өзгеріс енгізілді - ҚР 07.04.2015 № 300-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
Патентті алуға құқық, өтiнiмдi тiркеуден туындайтын құқықтар, патенттi иеленуге құқық және патенттен туындайтын құқықтар басқа тұлғаға толығымен немесе iшiнара берiлуi мүмкiн.
Ескерту. 993-бапқа өзгерістер енгізілді - ҚР 2007.03.02. N 237; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
994-бап. Авторлық құқық
1. Өнертабыстың, пайдалы модельдiң, өнеркәсiптiк үлгiнiң авторына авторлық құқық тиесілі болады.
2. Авторлық құқық және өнертабысқа, пайдалы модельге, өнеркәсiптiк үлгiге басқа да жеке құқықтар қорғау құжатына негiзделген құқықтардың туындаған кезiнен бастап пайда болады.
3. Өнертабыс, пайдалы модель, өнеркәсiптiк үлгi авторына заң актiлерi арнайы құқықтарды, әлеуметтiк сипаттағы жеңiлдiктер мен артықшылықтарды бекiтiп бере алады.
4. Өтiнiмде автор ретiнде көрсетiлген тұлға өзгеше дәлелденгенше автор болып есептеледi. Дәлелдемелер ретiнде құқық пайда болғанға дейiн орын алған фактiлер мен мән-жайлар ғана тартылуы мүмкiн.
Ескерту. 994-бапқа өзгерістер енгізілді - ҚР 2007.03.02. N 237; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
995-бап. Өнертабыстың, пайдалы модельдiң, өнеркәсiптiк үлгiнiң тең авторлары
1. Өнертабыстың, пайдалы модельдiң, өнеркәсiптiк үлгiнiң тең авторларының өзара қатынасы олардың арасындағы келiсiммен белгiленедi.
2. Өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi жасауға шығармашылық емес жәрдем (техникалық, ұйымдастырушылық немесе өзге де көмек, құқықтарды ресiмдеуге жәрдемдесу және т.б.) тең авторлыққа әкеп соқпайды.
996-бап. Қызметтік өнертабыстар, пайдалы модельдер, өнеркәсіптік үлгілер
Қызметкер өзiнiң қызметтiк мiндеттерiн немесе жұмыс берушiнiң нақты тапсырмасын орындаған кезде жасаған өнертабысқа, пайдалы модельге, өнеркәсiптiк үлгiге (қызметтік өнертабыстарға, пайдалы модельдерге, өнеркәсіптік үлгілерге) патентке берiлетiн құқық, егер олардың арасындағы шартта өзгеше көзделмесе, жұмыс берушiге тиесілі болады.
Ескерту. 996-бап жаңа редакцияда - ҚР 07.04.2015 № 300-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
997-бап. Автордың қызметтiк өнертабыс, пайдалы модель, өнеркәсiптiк үлгi үшiн сыйақы алуға құқығы
Авторға қызметтiк өнертабыс, пайдалы модель, өнеркәсiптiк үлгi үшiн сыйақы төлеу мөлшерi, шарттары және тәртiбi автор мен жұмыс берушi арасындағы келiсiмде айқындалады. Егер автор мен жұмыс берушiнiң қызметтiк өнертабысты, пайдалы модельдi немесе өнеркәсiптiк үлгiнi жасаудағы үлесiн мөлшерлеу мүмкiн болмаса, авторға сыйақы төлеу мөлшері, шарттары және тәртібі Қазақстан Республикасының заңнамалық актілерінде айқындалады.
Ескерту. 997-бап жаңа редакцияда - ҚР 31.10.2015 № 382-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
998-бап. Патенттің Қазақстан Республикасының аумағында қолданылуы
Ескерту. 998-баптың тақырыбына өзгеріс енгізілді - ҚР 07.04.2015 № 300-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1. Қазақстан Республикасының аумағында сараптама ұйымы берген өнертабысқа, пайдалы модельге және өнеркәсiптiк үлгiге патенттер қолданылады .
2. Шет мемлекет немесе халықаралық ұйым берген патенттер, Қазақстан Республикасының аумағында Қазақстан Республикасының халықаралық шарттарында көзделген жағдайларда қолданылады.
3. Егер белгiленген тәртiпте мәлiмденген шешiм тиiсiнше өнертабыстарға, пайдалы модельдерге немесе өнеркәсiптiк үлгiлерге Қазақстан Республикасының заңнамалық актiлерiнде қойылатын талаптарға сай келсе, шетелдіктер мен шетелдiк заңды тұлғалар немесе олардың құқықтық мирасқорлары Қазақстан Республикасында өнертабысқа, пайдалы модельге және өнеркәсiптiк үлгіге патент алуға құқылы.
Ескерту. 998-бапқа өзгерістер енгізілді - ҚР 2007.03.02. N 237; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 20.06.2018 № 161-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
999-бап. Патенттiң қолданылу мерзiмi
1. Патент сараптама ұйымына өтiнiм берілген күннен бастап қолданылады және Қазақстан Республикасының заңдарында белгiленген талаптар сақталған кезде:
1) өнертабысқа патент – жиырма жыл бойы күшiн сақтайды. Қолданылуы үшін Қазақстан Республикасының рұқсаттар және хабарламалар
туралы заңнамасында белгіленген тәртіппен рұқсаттар алу талап етілетін дәрілік
затқа, пестицидке (улы химикатқа) жататын өнертабысқа қатысты айрықша құқықтың және осы құқықты куәландыратын патенттің қолданылу мерзімі патент иеленушінің өтінішхаты бойынша, бірақ бес жылдан аспайтындай етіп ұзартылуы мүмкін.
Көрсетілген мерзім бес жыл шегеріле отырып, өнертабысқа патент беруге өтінім берілген күннен бастап өнертабысты қолдануға алғашқы рұқсат алынған күнге дейін өткен уақытқа ұзартылады;
2) пайдалы модельге патент – бес жыл бойы күшiн сақтайды. Патенттің қолданылу мерзімін сараптама ұйымы патент иеленушiнiң өтiнiшхаты бойынша, бірақ үш жылдан аспайтындай етіп ұзартуы мүмкiн;
3) өнеркәсiптiк үлгiге патент – он бес жыл бойы күшiн сақтайды. Патенттің қолданылу мерзімін сараптама ұйымы патент иеленушiнiң өтiнiшхаты бойынша, бірақ бес жылдан аспайтындай етіп ұзартуы мүмкiн.
2. Өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi қорғау сараптама ұйымына өтiнiм берілген күннен бастап қолданылады. Құқықтарды қорғау патент берiлгеннен кейiн жүзеге асырылуы мүмкiн. Патент беруден бас тартылған жағдайда, қорғауға алынбаған деп есептеледі.
3. Өнертабыстың, пайдалы модельдiң, өнеркәсiптiк үлгiнiң басымдығы Қазақстан Республикасының заңдарында көзделген тәртiппен айқындалады.
4. Айрықша құқықтың қолданылу мерзімі өткеннен кейін, сондай-ақ қолданылуы мерзімінен бұрын тоқтатылған жағдайда, өнертабыс, пайдалы модель немесе өнеркәсіптік үлгі қоғамдық игілікке өтеді.
5. Қоғамдық игілікке өткен өнертабысты, пайдалы модельді немесе өнеркәсіптік үлгіні кез келген адам ешкімнің келісімінсіз немесе рұқсатынсыз және пайдаланғаны үшін сыйақы төлемінсіз еркін пайдалана алады.
Ескерту. 999-бап жаңа редакцияда - ҚР 07.04.2015 № 300-V Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1000-бап. Өнертабысқа, пайдалы модельге, өнеркәсiптiк үлгiге айрықша құқық беру
Өнертабысқа, пайдалы модельге, өнеркәсiптiк үлгiге айрықша құқық беру туралы шарт жазбаша нысанда жасалады. Айрықша құқық беру уәкілетті мемлекеттік орган айқындайтын тәртіппен тіркелуге жатады.
Жазбаша нысанның және (немесе) тіркеу туралы талаптың сақталмауы шарттың маңызсыздығына алып келеді.
Тіркеудің күшін жою "Қазақстан Республикасының Патент Заңы" Қазақстан Республикасының Заңына сәйкес жүзеге асырылады.
Ескерту. 1000-бап жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1001-бап. Өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi пайдалануға құқықты табыстау
Ескерту. 1001-баптың тақырыбы жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1. Өнертабысты, пайдалы модельдi, өнеркәсiптік үлгiнi пайдалануға лицензиялық, қосалқы лицензиялық шарттар жазбаша нысанда жасалады. Өнертабысты, пайдалы модельдi, өнеркәсiптік үлгiнi пайдалануға құқықты табыстау уәкілетті мемлекеттік орган айқындайтын тәртіппен тіркелуге жатады.
Жазбаша нысанның және (немесе) тіркеу туралы талаптың сақталмауы шарттың маңызсыздығына алып келеді.
Тіркеудің күшін жою "Қазақстан Республикасының Патент Заңы" Қазақстан Республикасының Заңына сәйкес жүзеге асырылады.
2. Лицензиялық шарттың мазмұны осы Кодекстiң 966-бабында жазылған талаптарға сәйкес келуге тиiс.
Ескерту. 1001-бапқа өзгерістер енгізілді - ҚР 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 20.06.2018 № 161-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1002-бап. Ашық лицензия
1. Патент иесi кез келген тұлғаға өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi пайдалануға лицензия (ашық лицензия) алу құқығын беру туралы сараптама ұйымына өтiнiш бере алады.
2. Ашық лицензияны пайдалануға ниет бiлдiрген тұлға патент иесiмен төлем туралы шарт жасасуға мiндеттi. Мұндай шарттың талаптары туралы дауларды сот шешедi.
Ашық лицензияға құқық беру туралы патент иесiнiң өтiнiшi қайтарып алуға жатпайды.
Ескерту. 1002-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( қолданысқа енгізілу тәртібін 2-баптан қараңыз).
1003-бап. Патентті бұзғаны үшін жауаптылық
Ескерту. 1003-баптың тақырыбына өзгеріс енгізілді - ҚР 07.04.2015 № 300-V Заңымен (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
Патент иеленушінің талабы бойынша патентті бұзу тоқтатылуы тиiс, ал оны бұзушы патент иеленушіге өзi келтiрген залалдарды өтеуге мiндеттi (осы Кодекстiң 9-бабы). Патент иеленуші келтiрiлген залалдың орнына тәртiп бұзушыдан өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi заңсыз пайдалану салдарынан алынған кiрiстi өндiрiп алуға құқылы.
Ескерту. 1003-бапқа өзгерістер енгізілді - ҚР 2007.03.02. N 237; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1004-бап. Оған дейiн пайдалану құқығы
1. Өнертабыстың, пайдалы модельдiң, өнеркәсiптiк үлгiнiң басымдық алған күнiне дейiн Қазақстан Республикасының аумағында автордан тәуелсіз жасалған соған ұқсас шешімді адал ниетпен пайдаланған немесе осыған қажеттi дайындықтар жасаған кез келген тұлға пайдалану көлемiн кеңейтпестен оны әрi қарай тегiн пайдалану құқығын сақтайды.
2. Өнертабысты, пайдалы модельдi, өнеркәсiптiк үлгiнi басымдық алған күнiнен кейiн, бiрақ өнертабысқа, пайдалы модельге, өнеркәсiптік үлгiге патент беру туралы мәлiметтер ресми жарияланған күнге дейiн адал ниетпен пайдалана бастаған тұлға патент иеленушінің талап етуi бойынша одан әрi пайдалануды тоқтатуға мiндеттi. Алайда мұндай тұлға патент иесiне өзiнiң осындай пайдалануы нәтижесiнде келтiрiлген залалды өтеуге мiндеттi емес.
Ескерту. 1004-бапқа өзгерістер енгізілді - ҚР 2007.03.02. N 237; 07.04.2015 № 300-V (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1005-бап. Патент иесiнiң құқықтарын шектеу
Патент иесiнiң құқықтарын шектеу негiзi, патенттi тоқтату (жою) талаптары, оны жарамсыз деп тану, оның қолданылуын тоқтату, лицензияларды мәжбүрлеп беру және патенттердi мәжбүрлеп иелiктен алу заң актiлерiмен белгiленедi.
53-тарау. Селекциялық жетістіктерге құқық
1006-бап. Өсiмдiктердiң жаңа сорттарына және жануарлардың жаңа тұқымдарына құқықты қорғаудың талаптары
1. Өсiмдiктердiң жаңа сорттарына және жануарлардың жаңа тұқымдарына құқық (селекциялық жетiстiктер) патент берiлген жағдайда қорғалады. Патент арқылы патент иесiнiң селекциялық жетiстiктердi, оның басымдығын пайдалануына және селекционердiң авторлығына айрықша құқықты куәландырады.
Өсімдік шаруашылығында жасанды жолмен немесе сұрыптау жолымен алынған және оны қолда бар өсiмдiктер сорттарынан ерекшелендiретiн бiр немесе бiрнеше шаруашылық белгiлерi бар өсiмдiк сорты селекциялық жетiстiк деп танылады.
Мал шаруашылығында адам жасап шығарған және оны осы түрдегi жануарлардың өзге тұқымдарынан айыруға мүмкiндiк беретiн генеологиялық құрылымы мен қасиетi бар және бiр тұқым ретiнде көбейту үшiн сан жағынан жеткiлiктi тұқым, яғни шығу тегi ортақ жануарлардың саны көп тұтас тобы селекциялық жетiстiк деп танылады.
2. Селекциялық жетiстiктердi құқықтық қорғау талаптары, өсімдік сорттарына және жануарлар тұқымдарына патентті ресімдеу мен беру тәртiбi заң актiлерiмен белгiленедi.
3. Осы тараудың ережелерінде және селекциялық жетістіктерді қорғау туралы заңдарда өзгеше көзделмесе, селекциялық жетiстiктерге құқықтар мен осы құқықтарды қорғауға байланысты қатынастарға тиiсiнше осы Кодекстiң 992-998, 1000-1004-баптарының ережелерi қолданылады.
Ескерту. 1006-бапқа өзгерту енгізілді - Қазақстан Республикасының 2005.11.22. N 90 (қолданысқа енгізілу тәртібін 2-баптан қараңыз) Заңымен.
1007-бап. Автордың селекциялық жетiстiк атауын айқындау құқығы
1. Селекциялық жетiстiктiң авторы оның заңдарда белгiленген талаптарға сай келуге тиісті атауын айқындауға құқылы.
2. Қорғалатын селекциялық жетiстiктердi өндiру, ұдайы өндіру, сатуға ұсыну, сату және өткізудің өзге де түрлері кезінде олар үшін тіркелген атауларды қолдану мiндеттi. Өндiрiлген және (немесе) сатылатын тұқымдарға, асыл тұқымды материалға тiркелгеннен өзгеше атау беруге жол берiлмейдi.
3. Тiркелген селекциялық жетiстiктiң атауын оған қатысы жоқ өсiрiлген және (немесе) сатылатын тұқымдар мен асыл тұқымды материалға беру патент иесi мен селекционердiң құқықтарын бұзу болып табылады.
1008-бап. Селекциялық жетiстiк авторының сыйақы алуға құқығы
1. Патент иесi болып табылмайтын селекциялық жетiстiктiң авторы патенттiң қолданылу мерзiмi iшiнде патент иесiнен селекциялық жетiстiктi пайдаланғаны үшiн сыйақы алуға құқылы.
2. Селекциялық жетiстiк авторына сыйақы төлеудiң мөлшерi мен талаптары оның өзi мен патент иесi арасында жасалған шартта белгiленедi. Бұл орайда сыйақының мөлшерi лицензияларды сатудан түскен түсiмдi қоса алғанда, патент иесi селекция жетiстiктерiн пайдаланғаны үшiн алатын жыл сайынғы түсiмдер сомасының кемiнде бес процентi болуға тиiс.
Сыйақы авторға, егер автордың патент иесiмен шартында өзгеше көзделмесе, селекциялық жетiстiк пайдаланылған әрбiр жыл аяқталғаннан кейін алты ай ішінде төленеді.
1009-бап. Патент иесiнiң селекциялық жетiстiкке құқығы
Селекциялық жетiстiк патентi иесiнiң осы жетiстiктi селекциялық жетiстiктердi қорғау туралы заң актiлерiнде белгiленген шекте пайдалануға айрықша құқығы болады.
1010-бап. Патент иесiнiң мiндеттерi
Селекциялық жетiстiк патентiнiң иесi: 1) өндiрiсте пайдалануға жiберiлген сортты, тұқымды айналымға енгiзуге; 2) өсiмдiктiң тиiстi сортын немесе жануарлардың тиiстi тұқымын патенттi
қолдану мерзiмi iшiнде сорттың немесе тұқымның сараптама органы белгiлеген ресми сипаттамасында көрсетiлген белгiлерi сақталатындай етiп ұстауға мiндеттi .
1011-бап. Селекциялық жетiстiкке патенттiң қолданылу мерзiмi
Селекциялық жетiстiкке патенттiң қолданылуы сараптама ұйымына өтiнiм берiлген күннен басталады және жиырма бес жыл бойына жалғасады.
Селекциялық жетiстiктерді қорғау туралы" Қазақстан Республикасының Заңымен селекциялық жетiстiктердiң жекелеген түрлерi үшiн патенттi қолданудың неғұрлым ұзағырақ мерзiмдерi, сондай-ақ оларды ұзарту мүмкiндiгi белгiленуi мүмкiн.
Ескерту. 1011-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( қолданысқа енгізілу тәртібін 2-баптан қараңыз).
1012-бап. Селекциялық жетiстiктердi пайдалануға жіберу
Құқықтық қорғау берiлген (патентi бар) селекциялық жетiстiктер пайдалануға жіберiледi.
Ескерту. 1012-бап жаңа редакцияда - ҚР 27.11.2015 № 424-V Заңымен ( алғашқы ресми жарияланған күнінен кейін алты ай өткен соң қолданысқа енгізіледі).
54-тарау. Интегралды микротәсімдер топологиясына құқықтар
1013-бап. Интегралды микротәсiмдер топологиясына құқықтарды қорғау талаптары
1. Осы тарауда және өзге де заң актiлерiнде көзделген құқықтық қорғау интегралды микротәсiмдердiң түпнұсқа топологиясына ғана қолданылады.
Автордың шығармашылық қызметi нәтижесiнде жасалып, материалдық көздерде көрсетiлген интегралды микротәсiмдер мен олардың арасындағы байланыстардың элементтерi жиынтығының кеңiстiктiк-геометриялық орналасуы интегралды микротәсiмнiң түпнұсқалық топологиясы деп танылады.
2. Осы бөлiмнiң баптарымен берiлген құқықтық қорғау топологияда iске асуы мүмкiн идеяларға, әдiстерге, жүйелерге, технологияға немесе кодтандырылған ақпаратқа қолданылмайды.
3. Интегралды микротәсiмдер топологиясы құқығына және осы құқықтарды қорғауға байланысты қатынастарға тиiсiнше осы Кодекстiң 994-997-баптарының ережелерi қолданылады.
1014-бап. Интегралды микротәсiмдер топологиясына айрықша құқық
1. Интегралды микротәсiмдер топологиясы авторының немесе өзге де құқық иесiнiң бұл топологияны өз қалауы бойынша, атап айтқанда, мұндай топологияны басқа тұлғалардың тиісті рұқсатсыз пайдалануына тыйым салу құқығын қоса алғанда, мұндай топологиясы бар интегралды микротәсiм дайындау жолымен пайдаланудың айрықша құқығы болады.
2. Топологияның бiрнеше авторына немесе өзге де құқық иелерiне тиесiлi құқықтарды пайдалану тәртiбi олардың арасындағы шартпен белгiленедi.
3. Автордың рұқсатынсыз мынадай әрекеттердi жасау: 1) интегралды микротәсiмге енгiзу арқылы немесе өзге де түрде, оның
түпнұсқа болып табылмайтын бөлiгiн қоспағанда, топологияны тұтас немесе оның бөлiктерiн көшiрiп алу;
2) топологияны немесе осы топология бар интегралды микротәсiмдi қолдану, әкелу, сатуға ұсыну, сату және өзге де айналымға енгiзу айрықша құқықты бұзу болып табылады.
4. Топологияға құқық иесiнiң айрықша құқығын бұзу болып табылмайтын әрекеттердiң тiзбесi заң актiлерiнде белгiленедi.
1015-бап. Топологияларды тiркеу
1. Интегралды микротәсiм топологиясының авторы немесе өзге де құқық иесi сараптама ұйымына өтiнiм беру жолымен топологияны тiркетуге құқылы.
2. Тiркеуге өтiнiм беру, егер топология қолданылған болса, оны алғаш рет қолданған күннен бастап екi жылдан аспайтын мерзiмде жүзеге асырылуы мүмкiн.
3. Топологияны, сондай-ақ оларға құқықты толық немесе iшiнара беру туралы шарттарды тiркеу тәртiбi заң актiлерiмен белгiленедi.
Ескерту. 1015-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( қолданысқа енгізілу тәртібін 2-баптан қараңыз).
1016-бап. Топологияны қолдануға айрықша құқықтың қолданылу мерзiмi
1. Топологияны пайдалануға айрықша құқық топология тiркелген күннен бастап он жыл бойы күшiнде болады.
Егер топологияны тiркеу жүргiзiлмесе, аталған он жыл мерзiм осы топологияның немесе осы топология бар интегралды тәсiмнің дүние жүзiнiң кез келген елiнде алғаш рет пайдаланылғаны құжат арқылы расталған күннен бастап есептеледi.
2. Түпнұсқамен бiрдей, басқа автор өз бетiмен жасаған топологияның пайда болуы осы баптың 1-тармағында аталған айрықша құқық мерзiмiн үзбейдi және тоқтатпайды.
55-тарау. Ашылмаған ақпаратты заңсыз пайдаланудан қорғау құқығы
1017-бап. Ашылмаған ақпаратты құқықтық қорғау талаптары
1. Техникалық, ұйымдық немесе коммерциялық ақпаратты, оның iшiнде үшiншi тұлғаларға белгiсiз (ашылмаған ақпарат) өндiрiстiк құпияларды (ноу-хау) заңды түрде иеленетiн тұлғаның, егер осы Кодекстiң 126-бабының 1-тармағында белгiленген талаптар сақталса, осы ақпаратты заңсыз пайдаланудан қорғауға құқығы бар.
2. Ашылмаған ақпаратты заңсыз пайдаланудан қорғау құқығы осы ақпаратқа қатысты қандай да болсын шарттылықты орындауға (оны тiркеу, куәлiк алу және т. б.) қарамастан туындайды.
3. Ашылмаған ақпаратты қорғау туралы ережелер, заң актiлерiне сәйкес қызметтiк немесе коммерциялық құпия бола алмайтын мәлiметтерге (заңды тұлғалар туралы мәлiметтер, мүлiкке құқықтар және олармен мәмiлелер туралы мәлiметтер; статистикалық нысанда ұсынылуға жататын мәлiметтер және басқалары) қатысты қолданылмайды.
4. Ашылмаған ақпаратты қорғау құқығы осы Кодекстiң 126-бабының 1- тармағында көзделген талаптар сақталған жағдайда қолданыла бередi.
Ескерту. 1017-бапқа өзгерту енгізілді - ҚР 2010.03.19 № 258-IV Заңымен.
1018-бап. Ашылмаған ақпаратты заңсыз пайдаланғаны үшiн жауапкершiлiк
1. Ашылмаған ақпаратты заңсыз негiзде алған немесе таратқан не оны пайдаланушы тұлға осы ақпаратқа заңды түрде иелік етушiге оны заңсыз пайдаланудан келтiрiлген залалдарды өтеуге мiндеттi.
2. Егер ашылмаған ақпаратты заңсыз пайдаланушы тұлға оны таратуға құқығы жоқ тұлғадан алса, ол туралы ақпаратты алушы бiлмесе және бiлуге тиiс болмаса (адал ниеттi алушы), ашылмаған ақпараттың заңды иесi адал ниеттi алушы оны пайдалану заңсыз екенiн бiлгеннен кейiн одан ашылмаған ақпаратты пайдаланудан келтiрiлген залалдардың орнын толтыруды талап етуге құқылы.
3. Ашылмаған ақпаратқа заңды иелiк етушi тұлға оны кiм заңсыз пайдаланса, содан оның пайдаланылуын дереу тоқтатуды талап етуге құқылы. Алайда сот ашылмаған ақпаратты адал ниеттi алушының оны пайдалануға жұмсаған қаражатын ескере отырып, оны айрықша тегiн лицензия талаптарымен одан әрi пайдалануға рұқсат беруi мүмкiн.
4. Ашылмаған ақпараттың мазмұнын құрайтын мәлiметтердi өз бетiнше және заңды түрде алған тұлға бұл мәлiметтердi тиiстi ашылмаған ақпарат иесінің құқықтарына қарамастан пайдалануға құқылы және мұндай пайдалану үшiн оның алдында жауап бермейдi.
1019-бап. Ашылмаған ақпаратты заңсыз пайдаланудан қорғауға құқықтың ауысуы
1. Ашылмаған ақпаратқа иелiк етушi тұлға осы ақпараттың мазмұнын құрайтын мәлiметтердiң бәрiн немесе оның бiр бөлiгiн лицензиялық шарт бойынша басқа тұлғаға бере алады (осы Кодекстiң 966-бабы).
2. Лицензиат шарт бойынша алынған ақпарат құпиясын қорғауға тиiстi шараларды қолдануға мiндеттi және лицензиар сияқты оны үшiншi тұлғалардың заңсыз пайдалануынан қорғауға да сондай құқығы болады. Егер шартта өзгеше көзделмесе, лицензиялық шарт тоқталғаннан кейiн де, егер тиiстi мәлiметтер ашылмаған ақпарат болып қала беретiн болса, ақпараттың құпиялылығын сақтау мiндетi лицензиатқа жүктеледi.
56-тарау. Азаматтық айналымға, тауарларға және қызмет көрсетулерге қатысушыларды дараландыру құралдары Параграф 1. Фирмалық атау
1020-бап. Фирмалық атауға құқық
1. Заңды тұлғаның ресми бланкiлерде, баспа басылымдарында, жарнамада, маңдайша жазуларда, анықтамалықтарда, шоттарда, интернет-ресурстарда, тауарлар мен олардың қорабында және заңды тұлғаны даралауға қажеттi өзге де жағдайларда фирмалық атауды (осы Кодекстiң 38-бабы) пайдалануға айрықша құқығы бар.
2. Заңды тұлғаның фирмалық атауы оның жарғысы бекiтілген кезде айқындалады. Заңды тұлға белгiлi бiр фирмалық атаумен Бизнес-сәйкестендiру нөмiрлерiнiң ұлттық тiзiлiмiне енгiзiледi.
3. Тiркелiп қойған заңды тұлғаның фирмалық атауына ұқсас фирмалық атауды пайдалануға болмайды, өйткенi мұның өзi тиiстi заңды тұлғалардың ұқсап кетуiне, сондай-ақ олар шығаратын тауарлар немесе көрсететiн қызметтер жөнiнде жаңылыстыруға әкеп соғуы мүмкiн.
4. Егер бiр заңды тұлғаның фирмалық атауы басқа жеке немесе заңды тұлғаның тауар белгісімен (қызмет көрсету белгісімен) бiрдей немесе айырғысыз дәрежеге дейiн ұқсас болса және осындай бiрдейлiктің немесе ұқсастықтың нәтижесiнде тұтынушыларды жаңылыстыруы мүмкiн болса, онда айрықша құқығы ерте пайда болған дараландыру құралы (фирмалық атау, тауар белгісі, қызмет көрсету белгісі) басымдыққа ие болады. Осындай дараландыру құралының иеленушісi Қазақстан Республикасының заңнамасында белгіленген тәртiппен біртектес тауарларға немесе көрсетілетін қызметтерге арналған тауар белгісіне (қызмет көрсету белгісіне) берілген құқықтық қорғауды жарамсыз деп тануды немесе фирмалық атауды пайдалануға тыйым салуды талап етуге құқылы .
Ескерту. 1020-бапқа өзгерістер енгізілді - ҚР 2012.01.12 N 537-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi), 2012.12.24 N 60-V (алғашқы ресми жарияланғанынан кейiн
күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 20.06.2018 № 161-VI ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1021-бап. Заңды тұлғаның фирмалық атауын тауар белгiсінде пайдалану
Заңды тұлғаның фирмалық атауы оған тиесілі тауар белгісінде пайдаланылуы мүмкiн.
1022-бап. Фирмалық атауға құқықтың қолданылуы
1. Қазақстан Республикасының аумағында заңды тұлғаны белгiлеу ретiнде Қазақстан Республикасында тiркелген фирмалық атауға айрықша құқық қолданылады.
Шет мемлекетте тiркелген немесе кеңiнен танымал фирмалық атауға Қазақстан Республикасының аумағындағы айрықша құқық заң актiлерiнде көзделген жағдайларда қолданылады.
2. Заңды тұлғаның таратылуына және оның фирмалық атауының өзгертiлуiне байланысты фирмалық атауға құқықтың қолданылуы тоқтатылады.
1023-бап. Фирмалық атауды иелiктен алу құқығы
1. Заңды тұлға қайта ұйымдастырылған және кәсiпорын тұтасымен иелiктен алынған жағдайларды қоспағанда, заңды тұлғаның фирмалық атауын құқық иелiгiнен алуға және ауыстыруға жол берiлмейдi.
2. Фирмалық атауға құқықтың иесi басқа тұлғаға шартта келісілген әдістермен өз атауын пайдалануға рұқсат етуі (лицензия беруі) мүмкiн. Бұл орайда лицензиялық шартта тұтынушыны жаңылыстыруға жол бермейтiн шаралар көзделуге тиiс.
Параграф 2. Тауар белгiсi
1024-бап. Тауар белгiсiн құқықтық қорғау талаптары
1. Тауар белгiсiн құқықтық қорғау оны тiркеудiң негiзiнде не Қазақстан Республикасы қатысушысы болып табылатын халықаралық шарттардың негiзiнде тiркеусiз берiледi.
Тiркелген не халықаралық шартқа орай тiркеусiз қорғалатын сөзбен жазылған , бейнеленген, көлемдiк белгiлер немесе бiр тұлғаның тауарларын немесе
көрсететiн қызметтерiн екiншi тұлғаның бiртектес тауарлары мен қызметтерiнен ерекшелеу үшiн қолданылатын басқа да белгiлер тауар белгiсi (қызмет көрсету белгiсi) деп танылады.
Егер бiр жеке немесе заңды тұлғаның тауар белгісі (қызмет көрсету белгісі) басқа заңды тұлғаның фирмалық атауымен бiрдей немесе айырғысыз дәрежеге дейін ұқсас болса және осындай бiрдейлiктің немесе ұқсастықтың нәтижесiнде тұтынушыларды жаңылыстыруы мүмкiн болса, онда осы Кодекстiң 1020- бабының 4-тармағында көзделген ережелер қолданылады.
2. Тауар белгiсi ретiнде тiркеуге жол берiлмейтiн белгiлер, тауар белгiлерiн тiркеу, олардың қолданылуын тоқтату және тiркелуі жарамсыз деп тану тәртiбi, сондай-ақ тiркелмеген тауар белгiлерiн құқықтық қорғауға жол берiлуi мүмкiн болатын жағдайлар тауар белгiлерi туралы заң актiлерiмен белгiленедi.
3. Тауар белгiсiне құқық куәлiкпен куәландырылады. Ескерту. 1024-бапқа өзгерістер енгізілді - ҚР 2012.01.12 N 537-IV (алғашқы
ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi); 20.06.2018 № 161-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1025-бап. Тауар белгiсiн пайдалану құқығы
1. Тауар белгiсiне құқық иесiнiң өзiне тиесiлi белгiлердi қолдануға және билiк етуге айрықша құқығы бар.
Тауар белгісі иелерінің оны пайдалануға құқықтарын тауар белгісінің ерекшелену қабілетіне нұқсан келтіруі мүмкін талаптармен шектеуге жол берілмейді.
2. Тауар белгiсiн кез келген айналымға енгiзу: дайындау, қолдану, әкелу, сақтау, сатуға ұсыну, тауар белгiсiн немесе осы белгiмен белгіленген тауарды сату, маңдайшадағы жазуда, жарнамада, баспа өнімдерінде немесе өзге де іскерлік құжаттамада пайдалану - тауар белгiсiн пайдалану болып саналады.
3. Тауар белгілері және тауар белгілерімен белгіленген тауарлар жарнамасының ерекшеліктері Қазақстан Республикасының заңдарымен айқындалады.
Ескерту. 1025-бапқа өзгерістер енгізілді - ҚР 2007.06.19. N 264; 20.06.2018 № 161-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1026-бап. Қазақстан Республикасының аумағында тауар белгiсiн құқықтық қорғау
Қазақстан Республикасының аумағында құқықтық қорғау сараптама ұйымы немесе Қазақстан Республикасы ратификациялаған халықаралық шартқа орай халықаралық ұйым тіркеген тауар белгісіне берiледi.
Ескерту. 1026-бап жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1027-бап. Тауар белгiсiне құқықтың қолданылу мерзiмi
1. Тауар белгiсiнiң басымдығы "Тауар таңбалары, қызмет көрсету таңбалары және тауар шығарылған жерлердің атаулары туралы" Қазақстан Республикасының Заңына сәйкес немесе Қазақстан Республикасы ратификациялаған халықаралық шартқа орай белгiленедi.
2. Тауар белгiсiне құқық өтiнiм тiркелген кезден бастап он жыл бойы күшiнде болады.
Тауар белгiсiне құқық иесiнiң тауар белгiсi қолданылуының соңғы жылы ішінде сараптама ұйымына берген арызы бойынша тауар белгiсiнiң қолданылу мерзiмiн он жылға ұзартудың тiркелуi мүмкiн. Ұзарту шектеусiз сан мәрте жүргiзiлуi мүмкiн.
Ескерту. 1027-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1028-бап. Тауар белгісін пайдаланбаудың салдары
Тауар белгiсiн дәлелсiз себептермен үш жыл бойы үздiксiз пайдаланбаған жағдайда кез келген мүдделi тұлғаның талап етуi бойынша оның тiркелу күшiнiң жойылуы мүмкiн.
Тауар белгiсiн пайдалануға лицензиялық шарт жасасу оны пайдалану болып есептеледi.
Ескерту. 1028-бапқа өзгеріс енгізілді - ҚР 2012.01.12 N 537-IV (алғашқы ресми жарияланғанынан кейiн күнтiзбелiк он күн өткен соң қолданысқа енгiзiледi) Заңымен.
1029-бап. Тауар белгісiне құқықтың ауысуы
1. Құқық иесi барлық тауарлар мен көрсетілетін қызметтерге не олардың бiр бөлiктерiне қатысты тауар белгiсiне құқығын шарт бойынша басқа тұлғаға беруi мүмкiн.
2. Егер тауар белгiсiне құқық тауарға немесе оны дайындаушыға қатысты жаңылыстыруға себепкер болса, ол белгiге құқықты беруге жол берiлмейдi.
3. Тауар белгiсiне құқықтың ауысуы, соның iшiнде оның шарт бойынша немесе құқықтық мирасқорлық тәртiбiмен берiлуi сараптама ұйымында тiркелуге тиiс.
Ескерту. 1029-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1030-бап. Тауар белгiсiн пайдалануға рұқсат беру
1. Құқық иесi тіркелген тауарлар мен көрсетілетін қызметтерге не олардың бөлiктерiне қатысты тауар белгiсiн пайдалану құқығын лицензиялық шарт бойынша басқа тұлғаға беруi мүмкiн (осы Кодекстiң 966-бабы).
2. Лицензиатқа тауар белгiсiн пайдалануға рұқсат ететiн лицензиялық шартта, лицензиат тауарларының немесе көрсететiн қызметiнiң сапасы лицензиар тауарларының немесе көрсететiн қызметтерiнiң сапасынан төмен болмайтындығы және лицензиардың осы шарттың орындалуын бақылауды жүзеге асыруға құқығы бар екендiгi туралы талапты қамтуға тиіс.
3. Тауар белгiсiне құқықтың қолданылуы тоқтатылған жағдайда лицензиялық шарттың қолданылуы тоқтатылады.
4. Тауар белгiсiне құқықтың басқа тұлғаға ауысуы лицензиялық шарттың тоқтатылуына әкеп соқпайды.
Ескерту. 1030-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1031-бап. Тауар белгiсiне құқық беру және тауар белгісін пайдалануға құқықты табыстау
Тауар белгiсiне құқық беру туралы шарт, лицензиялық, қосалқы лицензиялық шарттар жазбаша нысанда жасалады. Тауар белгiсiне құқық беру немесе тауар белгісін пайдалануға құқықты табыстау уәкілетті мемлекеттік орган айқындайтын тәртіппен тіркелуге жатады.
Шарттың жазбаша нысанының және (немесе) тіркеу туралы талаптың сақталмауы шарттың маңызсыздығына алып келеді.
Тіркеудің күшін жою "Тауар таңбалары, қызмет көрсету таңбалары және тауар шығарылған жерлердің атаулары туралы" Қазақстан Республикасының Заңына сәйкес жүзеге асырылады.
Ескерту. 1031-бап жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1032-бап. Тауар белгiсiне құқықты бұзғаны үшін жауаптылық
1. Тауар белгiсi иесінің құқығын бұзған тұлға бұзушылықты дереу тоқтатуға және тауар белгісі иесінің шеккен залалдарын өтеуге міндетті.
2. Тауар белгісін немесе оған айырғысыз дәрежеге дейін ұқсас белгілемені немесе жалпыға бірдей белгілі тауар белгісін пайдаланудың құқыққа сыйымдылығын айқындауға байланысты дауларды сот Қазақстан Республикасының азаматтық процестік заңнамасында белгіленген тәртіппен қарайды.
3. Тауар белгісі немесе оған айырғысыз дәрежеге дейiн ұқсас белгілеме құқық иеленушінің келісімінсіз орналастырылған тауар және оның қаптамасы контрафактілік деп танылады. Контрафактілік тауарлар және олардың қаптамалары, сондай-ақ оларды жасау үшін пайдаланылған саймандар, жабдық немесе өзге де құралдар мен материалдар осындай тауарларды айналымға енгізу қоғамдық мүдделер үшін қажет болатын және Қазақстан Республикасының тұтынушылардың құқықтарын қорғау туралы заңнамасының талаптарын бұзбайтын жағдайларды қоспағанда, соттың заңды күшіне енген шешімі негізінде айналымнан шығарылуға және тәртіп бұзушының есебінен жойылуға жатады.
4. Құқық иеленуші осы баптың 3-тармағында көрсетілген жағдайларда контрафактілік тауарлардан және олардың қаптамаларынан заңсыз орналастырылған тауар белгісін немесе оған айырғысыз дәрежеге дейін ұқсас белгілемені алып тастауды талап етуге құқылы.
5. Тауар белгісі иесінің құқығын бұзған тұлға жұмыстарды орындау немесе қызметтерді көрсету кезінде жұмыстарды орындаумен немесе қызметтер көрсетумен бірге жүретін материалдардан, оның ішінде құжаттамадан, жарнамадан, маңдайша жазулардан тауар белгісін немесе оған айырғысыз дәрежеге дейін ұқсас белгілемені алып тастауға міндетті.
6. Құқық иеленуші құқық бұзу фактісі дәлелденген кезде залалдарды өтеудің орнына бұзушылықтың сипатын, тауар белгісі немесе оған айырғысыз дәрежеге дейін ұқсас белгілеме құқық иеленушінің келісімімен орналастырылған біртектес (түпнұсқа) тауарлардың нарықтық құнын негізге ала отырып, бұзушыдан сот айқындайтын мөлшерде өтемақы төлеуді талап етуге құқылы.
Ескерту. 1032-бап жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
Параграф 3. Тауар шығарылатын жердiң атауы
1033-бап. Тауар шығарылатын жердiң атауын құқықтық қорғау талабы
1. Тауар шығарылатын жердiң атауына, заң актiлерiнде көзделген жағдайларды қоспағанда, оны тiркеудiң негiзiнде құқықтық қорғау берiледi.
Айрықша қасиет ерекшелiгiмен немесе негiзiнен географиялық объектiге тән табиғи жағдайлармен немесе өзге де факторлармен не табиғи жағдайлардың және сол факторлардың ұштасуымен айқындалатын тауарды белгiлеу үшiн пайдаланылатын елдiң, елдi мекеннiң, жердiң немесе басқа да географиялық объектiнiң атауы тауардың шыққан жерiнiң атауы (шыққан жерiн көрсету) деп танылады.
Тауар шығарылатын жердiң атауы географиялық объектiнiң тарихи атауы болуы мүмкiн.
2. Географиялық объектiнi бiлдiретiн немесе оның атауын беретін, бірақ Қазақстан республикасында тауар әзірленген жерге байланыссыз белгiлi бiр тауар түрiнiң белгiсi ретiнде жаппай қолдануға енiп кеткен белгi осы параграфтың ережелерiне сәйкес тауар шығарылатын жердiң атауы деп танылмайды және ол құқықтық қорғау мақсаты үшiн тiркелуге жатқызылмайды. Алайда бұл мұндай атауды адал пайдаланбаудан құқықтары бұзылған тұлғаны оларды заң актілерінде көзделген өзге де әдістермен, соның iшiнде терiс пиғылды бәсеке туралы ережелердiң негiзiнде қорғау мүмкiндiгiнен айырмайды.
3. Тауар шығарылған жердің атауын құқықтық қорғау оны тіркеген кезде немесе Қазақстан Республикасы ратификациялаған халықаралық шартқа орай беріледі.
Ескерту. 1033-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1034-бап. Тауар шығарылатын жердiң атауын пайдалану құқығы
1. Тауар шығарылатын жердің атауын пайдалану құқығын иеленушi тұлға осы атауды тауарға, оның қорабына, жарнамада, анықтамалықтарда, шоттарда орналастыруға және осы тауарды азаматтық айналымға енгiзуге байланысты оны өзге де түрде пайдалануға құқылы.
2. Осы Кодекстiң 1033-бабының 1-тармағында аталған талаптарға сай келетiн тауарды белгiлеу үшiн тауар шығарылатын жердiң атауын бiрнеше тұлға бiрлесiп те, бiр-бiрiне тәуелсiз де тiркетуi мүмкiн. Тауар шығарылатын жердiң атауын пайдалану құқығы мұндай тұлғалардың әрқайсысында болады.
3. Тауар шығарылатын жердiң тiркелген атауымен бірдей немесе ұқсас географиялық белгiлеудi алғаш тiркелген күніне дейiн кемiнде алты ай бұрын адал ниетпен пайдаланған тұлға тауар шығарылған жердiң көрсетілген атауы тіркелген күннен бастап жетi жыл бойы одан әрi пайдалану құқығын сақтайды.
4. Тауар шығарылатын жердiң атауын пайдалану құқығын иелiктен алуға, оны беру туралы өзге де мәмiлелерге және оны лицензия негізінде пайдалануға беруге жол берілмейді.
Ескерту. 1034-бапқа өзгеріс енгізілді - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1035-бап. Тауар шығарылатын жердiң атауын құқықтық қорғаудың қолданылу аясы
1. Қазақстан Республикасында республика аумағында орналасқан тауарлар шығарылатын жердің атауларына құқықтық қорғау берiледi.
2. Басқа мемлекеттегi тауар шығарылатын жердiң атауын құқықтық қорғау, егер осы атау тауар шығарылатын елде, сондай-ақ Қазақстан Республикасында тіркелген болса, осы Кодекске сәйкес Қазақстан Республикасына берiледi.
1036-бап. Тауар шығарылған жердiң атауын пайдалану құқығының қолданылу мерзімі
Тауар шығарылған жердiң атауын пайдалану құқығы сараптама ұйымына өтiнiм берілген күннен бастап есептегенде он жыл бойы қолданылады.
Тауар шығарылған жердiң атауын пайдалану құқығының қолданылу мерзiмi оның иесiнің соңғы қолданылу жылы iшiнде берген өтiнiші бойынша, тауар шығарылған жердiң атауын пайдалану құқығын беретiн шарттар сақталған кезде он жылға ұзартылуы мүмкiн. Ұзартылу шектеусiз сан мәрте жүргiзiлуi мүмкiн.
Ескерту. 1036-бап жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1037-бап. Тауар шығарылған жердiң атауын құқыққа сыйымсыз пайдаланғаны үшін жауаптылық
1. Тауар шығарылған жердiң атауын пайдалану құқығын бұзған тұлға бұзушылықты дереу тоқтатуға және тауар шығарылған жердiң атауын пайдалану құқығы иесінің шеккен залалдарын өтеуге міндетті.
2. Тауар шығарылған жердiң атауын немесе оған айырғысыз дәрежеге дейін ұқсас белгілемені пайдаланудың құқыққа сыйымдылығын айқындауға байланысты дауларды сот Қазақстан Республикасының азаматтық процестік заңнамасында белгіленген тәртіппен қарайды.
3. Тауар шығарылған жердiң атауы немесе оған айырғысыз дәрежеге дейiн ұқсас белгілеме құқық иеленушінің келісімінсіз орналастырылған тауар және оның қаптамасы контрафактілік деп танылады. Контрафактілік тауарлар және олардың қаптамалары, сондай-ақ оларды жасау үшін пайдаланылған саймандар, жабдық немесе өзге де құралдар мен материалдар осындай тауарларды айналымға енгізу қоғамдық мүдделер үшін қажет болатын және Қазақстан Республикасының тұтынушылардың құқықтарын қорғау туралы заңнамасының талаптарын бұзбайтын жағдайларды қоспағанда, соттың заңды күшіне енген шешімі негізінде айналымнан шығарылуға және бұзушының есебінен жойылуға жатады.
4. Құқық иеленуші осы баптың 3-тармағында көрсетілген жағдайларда контрафактілік тауарлардан және олардың қаптамаларынан заңсыз орналастырылған тауар шығарылған жердiң атауын немесе оған айырғысыз дәрежеге дейін ұқсас белгілемені алып тастауды талап етуге құқылы.
5. Тауар шығарылған жердiң атауын пайдалану құқығын бұзған тұлға жұмыстарды орындау немесе қызметтерді көрсету кезінде жұмыстарды орындаумен немесе қызметтер көрсетумен бірге жүретін материалдардан, оның ішінде құжаттамадан, жарнамадан, маңдайша жазулардан тауар шығарылған жердiң атауын немесе оған айырғысыз дәрежеге дейін ұқсас белгілемені алып тастауға міндетті.
6. Құқық иеленуші құқық бұзу фактісі дәлелденген кезде залалдарды өтеудің орнына бұзушылықтың сипатын, тауар шығарылған жердiң атауы немесе оған айырғысыз дәрежеге дейін ұқсас белгілеме құқық иеленушінің келісімімен орналастырылған біртектес (түпнұсқа) тауарлардың нарықтық құнын негізге ала отырып, бұзушыдан сот айқындайтын мөлшерде өтемақы төлеуді талап етуге құқылы.
Ескерту. 1037-бап жаңа редакцияда - ҚР 20.06.2018 № 161-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
6 бөлiм Мұрагерлік құқық 57-тарау. Мұрагерлік туралы жалпы ережелер
1038-бап. Мұрагерлiк
1. Мұрагерлік - қайтыс болған азамат (мұра қалдырушы) мүлкiнiң басқа адамға (адамдарға) - мұрагерге (мұрагерлерге) ауысуы.
2. Қайтыс болған азаматтың мұрасы басқа адамдарға әмбебап құқық мирасқорлығы талаптарымен, егер осы бөлiмнiң ережелерiнен өзгеше туындамаса, бiрыңғай тұтас нәрсе ретiнде және бiр-ақ мезгiлде ауысады.
3. Мұрагерлiк осы Кодекспен, ал тiкелей өзi белгiлеген жағдайларда өзге де заң актiлерiмен реттеледi.
1039-бап. Мұрагерлiктiң негiздерi
1. Мұрагерлiк өсиет және (немесе) заң бойынша жүзеге асырылады. 2. Өсиет қалдырылмаған не бүкiл мұраның тағдыры айқындалмаған кезде,
сондай-ақ осы Кодексте белгiленген өзге де жағдайларда мұрагерлiк заң бойынша орын алады.
1040-бап. Мұраның құрамы
1. Мұраның құрамына мұра қалдырушыға тиесiлi мүлiк, сондай-ақ оның қайтыс болуына байланысты қолданылуы тоқтамайтын құқықтары мен мiндеттерi кiредi.
Мұраның құрамына мұра қалдырушының тірі кезінде ресімделмеген мүліктік құқықтарын ресімдеу үшін қажетті құқықтар, оның ішінде оларды тіркеу құқығы да кіруі мүмкін.
2. Мұра қалдырушының жеке басына тығыз байланысты мына құқықтар мен мiндеттер:
1) егер заң актiлерiнде немесе шартта өзгеше белгiленбесе, заңды тұлғалар болып табылатын ұйымдарға мүше болу құқығы;
2) өмiрiне немесе денсаулығына келтiрiлген зиянды өтеу құқығы; 3) алименттiк мiндеттемелерден туындайтын құқықтар мен мiндеттер; 4) зейнетақы төлемдеріне, жәрдемақылар мен Қазақстан Республикасының
еңбек заңнамасының және Қазақстан Республикасының әлеуметтік қамсыздандыру саласындағы заңдарының негізінде басқа да төлемдер алу құқығы;
5) заңнамалық актілерде белгіленген жағдайларды қоспағанда, мүлiктiк құқықтармен байланысы жоқ жеке мүлiктiк емес құқықтар мұраның құрамына кiрмейдi.
3. Мұра қалдырушыға тиесілі болған жеке мүліктік емес құқықтар мен басқа да материалдық емес игiлiктердi мұрагерлердiң жүзеге асыруы және қорғауы мүмкiн.
Ескерту. 1040-бапқа өзгерістер енгізілді - ҚР 2007.05.15 N 253, 2011.12.28 N 524-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі); 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1041-бап. Ортақ бiрлескен меншiк болып табылатын мүлiкке мұрагерлiк
1. Ортақ бiрлескен меншiкке қатысушының қайтыс болуы оның меншiктегi үлесiн айқындау және ортақ мүлiктi бөлу не осы Кодекстiң 218-бабында белгiленген тәртiппен одан қайтыс болған қатысушының үлесiн бөлiп шығару үшiн негiз болып табылады. Бұл жағдайда мұра қайтыс болған қатысушының ортақ мүлiктегi үлесiне, ал мүлiктi заттай бөлу мүмкiн болмаған кезде - үлестiң құнына қатысты ашылады.
2. Ортақ бiрлескен меншiкке қатысушы ол қайтыс болғаннан кейiн осы баптың 1-тармағына сәйкес айқындалатын ортақ мүлiктегi өз үлесiне өсиет қалдыруға құқылы.
1042-бап. Мұраның ашылуы
1. Мұра азаматтың қайтыс болуы немесе оны қайтыс болды деп жариялау салдарынан ашылады.
2. Мұра қалдырушының қайтыс болған күнi, ал оны қайтыс болған деп жариялаған кезде, егер сот шешімінде басқа күн көрсетiлмесе, азаматты қайтыс болды деп жариялау туралы сот шешiмi күшiне енген күн мұраның ашылу уақыты болып табылады.
3. Егер бiрiнен кейiн бiрi мұрагер болуға құқылы адамдар бiр күнде қайтыс болса, олар бiр мезгiлде қайтыс болған деп танылады және олардың әрқайсысынан кейін мұрагерлік ашылады да олардың әрқайсысының мұрагерлері мұрагерлiкке шақырылады.
1043-бап. Мұраның ашылу орны
Мұра қалдырушының соңғы тұрған жерi, ал егер ол белгiсiз болса - мүлiктiң немесе оның негiзгi бөлiгiнiң орналасқан жерi мұраның ашылу орны болып табылады.
1044-бап. Мұрагерлер
1. Мұра ашылған кезде тiрi жүрген, сондай-ақ мұра қалдырушының тiрi кезiнде iште қалған және мұра ашылғаннан кейiн тiрi туған азаматтар өсиет және заң бойынша мұрагер бола алады.
2. Мұра ашылғанға дейiн құрылған және мұраның ашылу уақытында болған заңды тұлғалар, сондай-ақ мемлекет өсиет бойынша мұрагерлер болуы мүмкiн.
1045-бап. Мұрадан лайықсыз мұрагерлердi шеттету
1. Мұра қалдырушыны немесе мүмкiн болатын мұрагерлердiң бiреуiн қасақана өлтiрген немесе олардың өмiрiне қастандық жасаған адамдардың өсиет бойынша да, заң бойынша да мұра алуға құқығы жоқ. Бұған өсиет қалдырушы оның өмiрiне қастандық жасалғаннан кейiн өздерiне қатысты өсиет қалдырған адамдар кiрмейдi.
2. Мұра қалдырушының соңғы еркiн жүзеге асыруға қасақана кедергi жасаған және сол арқылы олардың өздерiн немесе оларға жақын адамдарды мұрагерлiкке шақыруға не мұраның оларға тиесілі үлесін көбейтуге ықпал жасаған адамдардың өсиет бойынша да, заң бойынша да мұра алуға құқығы жоқ.
3. Балаларына ата-аналық құқықтарынан айырылған және мұра ашылған кезде бұл құқықтарын қалпына келтiрмеген ата-аналардың балаларынан қалған мұраны, сондай-ақ мұра қалдырушыны күту жөнiнде өздерiне заң күшiмен жүктелген мiндеттердi орындаудан жалтарған ата-аналардың (асырап алушылардың) және кәмелетке толған (асырап алынған) балалардың заң бойынша мұраны алуға құқығы жоқ.
4. Лайықсыз мұрагерлердi мұрагерлiктен шеттетуге негiз болатын мән-жайларды сот белгiлейдi.
4-1. Осы баптың негiзiнде мұрагерлiкке құқығы жоқ немесе мұрагерлiктен шеттетiлген адам (лайықсыз мұрагер) мұраның құрамынан негiзсiз алған барлық мүлiктi қайтаруға мiндеттi.
Мұрагерлiк мүлiктi қайтару мүмкiн болмаған кезде лайықсыз мұрагер оның нарықтық құнын өтеуге мiндетi.
5. Осы баптың ережелерi өсиеттiк бас тартуға да қолданылады (осы Кодекстiң 1057-бабы).
Лайықсыз бас тартушы үшiн белгiлi бiр жұмысты орындау немесе оған белгiлi бiр қызмет көрсету өсиеттiк бас тартудың нысаны болған жағдайда, ол
өсиеттiк бас тартуды орындаған мұрагерге атқарған жұмыстың немесе оған көрсетiлген қызметтiң құнын өтеуге мiндеттi.
6. Осы баптың ережелерi барлық мұрагерлерге, соның iшiнде міндеттi үлеске құқығы бар мұрагерлерге де қолданылады.
Ескерту. 1045-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
58-тарау. Өсиет бойынша мұрагерлік
1046-бап. Жалпы ережелер
1. Азаматтың ол қайтыс болған жағдайда өзiне тиесiлi мүлiкке билiк ету жөнiнде өз ықтиярын бiлдiруi өсиет болып танылады.
1-1. Өсиеттi оны жасаған кезде толық әрекет қабiлеттiлiгi бар азамат жасайды .
2. Азамат өзінің барлық мүлкiн немесе оның бiр бөлігін заң бойынша мұрагерлер тобына кiретiн де, кiрмейтiн де бiр не бiрнеше адамға, сондай-ақ заңды тұлғаларға және мемлекетке өсиет етiп қалдыра алады.
3. Өсиеттi өзi жасауға тиiс. Өкiл арқылы өсиет жасауға жол берiлмейдi. 4. Өсиет қалдырушы себебiн түсiндiрместен заң бойынша мұрагерлердiң
бiреуiн, бiрнешеуiн немесе барлығын мұрадан айыруға құқылы. Егер өсиеттен өзгеше туындамаса, заң бойынша мұрагердi мұрадан айыру оның ұсынылу құқығы бойынша мұрагерлiк етушi ұрпақтарына қолданылмайды.
5. Мұра қалдырушы өзiнiң кез келген мүлкi, оның iшiнде болашақта сатып алуы мүмкiн мүлкi туралы да өкiм бар өсиет жасауға құқылы.
Өсиет қалдырушы мұрагерлердiң мұрадағы үлесiн кез келген түрде белгiлеуi мүмкiн, әртүрлi мүлiкке қатысты бiр немесе бiрнеше өсиет жасай отырып, өз мүлкiне немесе оның қандай да бiр бөлiгiне билiк ете алады.
6. Мұра қалдырушы жасалған өсиеттiң оны жасағаннан кейiн кез келген уақытта күшiн жоюға және өзгертуге ерiктi және күшiн жоюдың немесе өзгертудiң себебiн көрсетуге мiндеттi емес.
7. Мұра қалдырушының өсиетте өзi мұрагер етiп тағайындаған адамдарға, олар қайтыс болған жағдайда өз кезегiнде өсиет еткен мүлiктi белгiлi бiр түрде билiк ету мiндетiн жүктеуге құқығы жоқ.
Ескерту. 1046-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1047-бап. Талап қойылған өсиет
1. Өсиет қалдырушы мұрагер мiнез-құлқының сипатына қатысты мұра алуды белгiлi бiр талаппен байланыстыруға құқылы.
2. Мұрагер тағайындау немесе мұра алу құқығынан айыру туралы өкiмге енгiзiлген құқыққа қайшы талаптар маңызсыз болады.
3. Өсиетке енгiзiлген мұрагердiң денсаулық жағдайы бойынша немесе өзге де объективтi себептерге байланысты мұрагер үшiн орындалмайтын талаптар мұрагердiң талап қоюы бойынша жарамсыз деп танылуы мүмкiн.
Ескерту. 1047-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1048-бап. Мұрагерлердi қосымша тағайындау
1. Өсиет қалдырушы өсиетте көрсетiлген мұрагер мұра ашылғанға дейiн қайтыс болған, оны қабылдамаған не одан бас тартқан немесе осы Кодекстiң 1045-бабындағы тәртiппен лайықсыз мұрагер ретiнде мұрагерлiктен шеттетiлген жағдайда, сондай-ақ мұрагер мұра қалдырушының заңды талаптарын өсиет бойынша орындамаған жағдайда, басқа мұрагер тағайындай алады (мұрагердi қосымша тағайындау).
2. Осы Кодекстiң 1044-бабына сәйкес мұрагер бола алатын кез келген адам қосымша тағайындалған мұрагер болуы мүмкiн.
3. Өсиет бойынша мұрагердiң қосымша тағайындалған мұрагерге пайдасы тимейтiн бас тартуына жол берiлмейдi.
1049-бап. Мүлiктiң өсиет етiлмей қалған бөлiгiне мұрагерлiк
1. Мүлiктiң өсиет етiлмей қалған бөлiгi осы Кодекстiң 1061-1064- баптарындағы тәртiппен мұрагерлiкке шақырылған мұрагерлер арасында заң бойынша бөлiнедi.
2. Бұл мұрагерлердiң қатарына заң бойынша мүлiктiң басқа бөлiгi өсиет арқылы қалдырылған мұрагерлер де кiредi.
Ескерту. 1049-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1050-бап. Өсиеттiң нысаны туралы жалпы ережелер
1. Өсиет оның жасалған жерi, күні және уақыты көрсетiле отырып, жазбаша нысанда жасалып, нотариатта куәландырылуға тиiс.
2. Мыналар: 1) нотариатта куәландырылған өсиеттер;
2) нотариатта куәландырылғандарға теңестірiлетін өсиеттер тиiсiнше ресiмделген болып танылады.
3. Өсиетке өсиет қалдырушының өзi қол қоюы қажет. Егер өсиет қалдырушы дене кемiстiктерiне, науқастығына немесе
сауатсыздығына байланысты өсиетке өзi қол қоя алмаса, оның өтiнiшi бойынша оған нотариустың немесе өсиеттi куәландырушы басқа адамның қатысуымен өсиет қалдырушының өсиетке өзi қол қоя алмауының себебiн көрсете отырып, басқа азаматтың қол қоюы мүмкiн.
4. Осы Кодекстiң ережелерiне сәйкес өсиеттi жазу, оған қол қою немесе куәландыру кезiнде куәлар қатысуға тиiс болған жағдайларда:
1) нотариус немесе өсиеттi куәландыратын өзге адам; 2) пайдасына өсиет жазылған немесе өсиет қалдырудан бас тартылған адам,
оның зайыбы, оның балалары, ата-аналары, немерелерi мен шөберелерi, сондай-ақ өсиет қалдырушының заң бойынша мұрагерлерi;
3) толық әрекетке қабiлеттiлiгiн иеленбейтiн азаматтар; 4) сауатсыз және өсиеттi оқуға қабiлетсiз басқа да адамдар;
5) жалған жауап бергенi үшiн соттылығы бар адамдар куә бола алмайды, сондай-ақ өсиет қалдырушының орнына өсиетке қол қоя алмайды.
Ескерту. 1050-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1051-бап. Нотариатта куәландырылған өсиет
1. Нотариатта куәландырылған өсиеттi өсиет қалдырушы жазуы керек не өсиет қалдырушының айтуымен куәның қатысуы арқылы нотариус жазуға тиiс. Өсиет қалдырушының айтуымен өсиет жазылған кезде нотариус жалпы жұрт қабылдаған техникалық құралдарды (жазу машинкасы, дербес компьютер және т.б.) пайдалануы мүмкiн.
2. Өсиет қалдырушының айтуы бойынша нотариус жазған өсиеттi өсиетке қол қойылғанға дейiн нотариус пен куәның қатысуы арқылы өсиет қалдырушы толық оқып шығуға тиіс.
Егер өсиет қалдырушы дене кемiстiктерiне, науқастығына немесе сауатсыздығына байланысты өсиеттi өзi оқи алмайтын болса, ол үшiн оның мәтiнiн нотариустың қатысуымен куә оқып бередi, ол туралы өсиет қалдырушының өсиеттi өзi оқи алмауының себептерi көрсетiлiп, өсиетте тиiстi жазба жасалады.
3. Егер нотариат куәландырған өсиет куәның қатысуымен жасалса, өсиетте куәның тегi, аты және тұрақты тұратын жерi көрсетiлуге тиiс. Осындай
мәлiметтер өсиетке өсиет қалдырушының орнына қол қойған адамға қатысты да енгiзілуi тиiс.
4. Өсиет қалдырушының тiлегi бойынша нотариус өсиеттiң мазмұнымен таныспай-ақ оны куәландырады (құпия өсиет).
Құпия өсиет, оның жарамсыз болып қалу қаупiмен, өсиет қалдырушының өз қолымен жазылуға және қолы қойылуға, екi куәның және нотариустың қатысуымен куәлар қол қоятын конвертке салынып, желiмденуге тиiс. Куәлар қол қойған конверт куәлардың және нотариустың қатысуымен, нотариус куәландырып қол қоятын басқа конвертке салынып желiмденедi.
4-1. Құпия өсиет жасаған адамның қайтыс болуы туралы куәлік ұсынылған кезде нотариус қайтыс болу туралы куәлік ұсынылған күннен бастап он күннен кешіктірмей өсиеті бар конвертті кемінде екі куәнің және заң бойынша мұрагерлер арасынан оған қатысуға ниет білдірген мүдделі адамдардың қатысуымен ашады. Конвертті ашқаннан кейін нотариус ондағы өсиеттің мәтінін бірден жариялайды, одан кейін нотариус өсиеті бар конверттің ашылғанын куәландыратын және өсиеттің толық мәтінін қамтитын хаттама жасайды және куәлармен бірге оған қол қояды. Өсиеттің төлнұсқасы нотариуста сақталады. Мұрагерлерге хаттаманың нотариат куәландырған көшірмесі беріледі.
5. Нотариус жоқ елдi мекендерде тұратын адамдардың өсиетiн заң актiлерiнде нотариат әрекеттерiн жасауға уәкiлдiк берiлген лауазымды адамдар куәландырады.
Ескерту. 1051-бапқа өзгеріс енгізілді - ҚР 21.01.2019 № 217-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1052-бап. Нотариатта куәландырылғандарға теңестiрiлетiн өсиеттер
1. Нотариатта куәландырылған өсиеттерге: 1) ауруханаларда, санаторийлерде, өзге де емдеу-алдын алу мекемелерiнде
емделiп жатқан, сондай-ақ қарттар мен мүгедектерге арналған үйлерде тұратын азаматтардың осы ауруханалардың, санаторийлердiң, өзге де емдеу-алдын алу мекемелерiнiң бас дәрiгерлерi және кезекшi дәрiгерлерi, сондай-ақ қарттар мен мүгедектерге арналған үйлердiң директорлары, бас дәрiгерлерi куәландырған өсиеттерi;
2) госпитальдарда, санаторийлерде және басқа да әскери-емдеу мекемелерiнде емделiп жатқан әскери қызметшiлер мен басқа адамдардың осы госпитальдардың, санаторийлердiң және басқа да әскери-емдеу мекемелерiнiң бастықтары, олардың медицина бөлiмi жөнiндегi орынбасарлары, аға және кезекшi дәрiгерлерi куәландырған өсиеттерi;
3) жүзу кезiнде Қазақстан Республикасының жалауымен теңiз кемелерiнде немесе iшкi жүзу кемелерiнде жүрген азаматтардың осы кемелердiң капитандары куәландырған өсиеттерi;
4) барлау және басқа да экспедицияда жүрген азаматтардың осы экспедициялардың бастықтары куәландырған өсиеттерi;
5) нотариустары және нотариат әрекеттерiн жасауға уәкiлдiк берiлген лауазымды адамдары жоқ әскери бөлiмдердiң, құрамалардың, мекемелердiң, әскери-оқу орындарының орналасқан мекендерiндегi әскери қызметшiлердiң өсиеттерi, сондай-ақ осы бөлiмдерде жұмыс iстейтiн жай адамдардың, олардың отбасы мүшелерiнiң және әскери қызметшiлердiң отбасы мүшелерiнiң де әскери бөлiмдердiң, құрамалардың, мекемелер мен оқу орындарының командирлерi ( бастықтары) куәландырған өсиеттерi;
6) бас бостандығынан айыру орындарындағы адамдардың бас бостандығынан айыру орындарының бастықтары куәландырған өсиеттерi теңестiрiледi.
2. Өсиет қалдырушы, осы баптың 1-тармағында көзделген өсиеттерге, өсиетке өзi де қол қоятын куәның қатысуымен қол қоюға тиiс.
Осы баптың 1-тармағында келтiрiлген лауазымды адамдар куәландырылған өсиеттiң бiр данасын нотариат туралы заңдарға сәйкес нотариустың сақтауына беруге мiндеттi.
Өсиеттiң нотариатта куәландырылуы туралы талаптарды қоспағанда, мұндай өсиеттердiң өзгелерiне тиiсiнше осы Кодекстiң 1051-бабының ережелерi қолданылады.
1053-бап. Өсиеттiң күшiн жою және оны өзгерту
1. Өсиет қалдырушы өзi жасаған өсиеттiң кез келген уақытта күшiн жоюға немесе оны өзгертуге құқылы.
2. Өсиеттiң күшi: 1) нотариат кеңсесiне бұрын өзi жасаған өсиеттiң толық күшiн жою туралы
өтiнiш беру; 2) жаңа өсиет жасау жолымен жойылуы мүмкiн. 3. Өсиет: 1) нотариат кеңсесiне бұрын өзi жасаған өсиеттiң белгiлi бiр бөлiгiн өзгерту
туралы өтiнiш беру; 2) бұрын жасалған өсиетті бөлiктерi бойынша өзгертетiн жаңа өсиет жасау
жолымен өзгертiлуi мүмкiн. 4. Бұрын жасалып, кейiнгi өсиет арқылы толық немесе iшiнара күшi
жойылған өсиет, егер өсиет қалдырушы өз кезегiнде соңғысының күшiн жойса немесе өзгертсе, қалпына келтiрiлмейдi.
1054-бап. Өсиеттiң құпиясы
Нотариустың, өсиеттi куәландыратын басқа адамның, куәлардың, сондай-ақ өсиет қалдырушының орнына өсиетке қол қоятын азаматтың мұра ашылғанға дейін өсиеттің мазмұнына, оның жасалуына, күшi жойылуына немесе өзгертiлуiне қатысты мәліметтерді жария етуге құқығы жоқ.
1055-бап. Өсиетке түсiнiк беру
Нотариус, өсиеттi орындаушы немесе сот өсиетке түсiнiк берген кезде ондағы сөздер мен тiркестердiң дәлме-дәл мәнi назарға алынады. Өсиеттiң қандай да болсын ережесiнiң дәлме-дәл мағынасы түсiнiксiз болған кезде ол осы ереженi басқа ережелермен және өсиеттiң тұтас мағынасымен салыстыру арқылы анықталады.
1056-бап. Өсиеттiң жарамсыздығы
1. Тиiстi нысанда жасалмаған өсиет маңызсыз болады. Өсиеттiң жарамсыздығы осы Кодекстiң 4-тарауының мәмiлелердiң жарамсыздығы туралы қағидаларына негiзделеді.
2. Өсиеттi жасаудың, оған қол қоюдың және оны куәландырудың осы Кодекспен белгiленген тәртiбiнiң бұзылуы салдарынан өсиеттi жарамсыз деп танудан мүлiктiк зардап шеккен адамның талабы бойынша өсиет жарамсыз деп танылуы мүмкiн.
Eгep сот мұра қалдырушының өз еркiн бiлдiруiн түсiнуге әсер етпейдi деп белгiлесе, өсиеттi жасау, қол қою немесе оны растау кезiнде жiберiлген емле қателерi және техникалық сипаттағы басқа да елеусiз қателер өсиеттi жарамсыз деуге негiз бола алмайды.
3. Өсиеттегi жекелеген өкiмдердiң жарамсыздығы өсиеттiң қалған бөлiгiнiң жарамдылығын қозғамайды.
4. Өсиет жарамсыз деп танылған жағдайда, осы өсиет бойынша мұрадан айрылған мұрагер, осы Кодекстiң 1060-бабында белгiленген тәртiппен заң бойынша мұра алу құқығына ие болады.
Ескерту. 1056-бапқа өзгерістер енгізілді - ҚР 2007.01.12. N 225; 27.02.2017 № 49-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1057-бап. Өсиеттiк бас тарту (легат)
1. Өсиет қалдырушы өсиет бойынша мұрагерге мұра есебiнен өсиеттiк бас тартуды орындауды талап ету құқығын алатын бiр немесе бiрнеше адамның (бас тартылушылардың) пайдасына қандай да болсын мiндеттеменi (өсиеттiк бас тарту) орындауды жүктеуге құқылы.
Заң бойынша мұрагерлер қатарына кiретiн адамдар да, кiрмейтiн адамдар да бас тартылушылар (легатарийлер) болуы мүмкін.
2. Өсиеттiк бас тартудың нысанасы мұраның, иеленудiң құрамына кiретiн заттарды бас тартылушының меншiгiне, пайдалануына немесе өзге заттық құқықта беру және оған мұра құрамына кiрмейтiн мүлiктi беру, ол үшiн белгiлi бiр жұмысты орындау, оған белгiлi қызмет көрсету және т.б. болуы мүмкiн.
3. Өсиет қалдырушы өсиеттiк бас тартуды жүктеген мұрагер, оны тек оған ауысқан мұраның шын мәнiндегi құны шегiнде және мұра қалдырушы қарыздарының өзiне артылған бөлiктерiн шығарып тастап орындауға тиiс.
Егер өсиеттiк бас тарту жүктелген мұрагердiң мұрадағы мiндеттi үлеске құқығы болса, оның бас тартуды орындау мiндетi өзіне ауысқан мұраның оның міндетті үлесінің құнынан асатын құнымен шектеледi.
Егер өсиеттiк бас тарту барлық немесе бiрнеше мұрагерге жүктелсе, өсиетте өзгеше көзделмесе, ол мұрагерлердiң әрқайсысына мұрадағы үлесiне мөлшерлес салмақ салады.
4. Тұрғын үй немесе өзге де тұрғын үй-жай ауысатын мұрагерге өсиет қалдырушы тұрғын үй-жайды немесе оның белгiлi бiр бөлiгiн басқа адамға өмiр бойы пайдалануға беру мiндеттемесiн жүктеуге құқылы. Тұрғын үй-жайға меншiк құқығы кейiннен ауысқан жағдайда өмiр бойы пайдалану құқығы күшiн сақтайды.
Өмiр бойы пайдалану құқығы иелiктен айырылмайды, берiлмейдi және бас тартылушының мұрагерлерiне ауыспайды.
Бас тартылушыға берiлген өмiр бойы пайдалану құқығы, егер өсиетте өзгеше көрсетiлмесе, оның отбасы мүшелерiнiң тұруына негiз болмайды.
5. Өсиеттiк бас тарту жүктелген мұрагер қайтыс болған жағдайда немесе ол мұраны қабылдамаған жағдайда өсиеттiк бас тартуды орындау оның үлесiн алған басқа мұрагерге, не мүлiк иесiз қалса, мемлекетке ауысады.
Өсиеттiк бас тарту мұра ашылғанға дейiн немесе ашылғаннан кейiн бас тартылушы қайтыс болған жағдайда, бiрақ өсиет бойынша мұрагер оны қабылдап үлгерген кезге дейiн орындалмайды.
6. Бас тартылушы мұра қалдырушының борыштары үшiн жауап бермейдi.
1058-бап. Жүктеу
1. Өсиет қалдырушы өсиет бойынша мұрагерге қандай да болсын әрекет жасау немесе кредит берушi ретiнде осы мiндеттi атқаруды талап ету құқығын ешкiмге ұсынбастан одан тартыну мiндетiн жүктей алады. Жалпыға пайдалы мақсатты жүзеге асыру үшін осындай мiндет мұра қалдырушы жүктеудi атқаруға мүлiктiң бiр бөлiгiн бөлiп шығарған кезде өсиеттi орындаушыға жүктелуi мүмкiн .
2. Мүлiктiк сипаты бар әрекеттер мәні болып табылатын жүктеуге, тиiсiнше осы Кодекстiң 1057-бабының қағидалары қолданылады.
3. Егер осы Кодексте көзделген мән-жайлар бойынша мұраның жүктеудi орындау мiндетi мойнында болған мұрагерге есептелетiн немесе оған тиесiлi үлесi басқа мұрагерлерге ауысса, жүктеудi орындау міндеті тоқтатылады.
Ескерту. 1058-бапқа өзгеріс енгізілді - ҚР 2012.04.27 N 15-V (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1059-бап. Өсиеттiң орындалуы
1. Өсиет қалдырушы өсиеттi орындауды мұрагер болып табылмайтын, өсиетте өзi көрсеткен адамға (өсиеттi орындаушыға, өсиет жүктелген өкiлге) тапсыра алады. Бұл адамның өсиеттi орындаушы болуға келiсiмi оның не өсиеттiң өзiне өз қолымен жазған жазбада не өсиетке қоса берiлген өтiнiште көрсетiлуге тиiс.
Егер өсиетте оның орындаушысы көрсетiлмесе, мұрагерлер өзара келiсiм бойынша өсиеттi орындауды мұрагерлердiң бiрiне не басқа адамға тапсыруға құқылы. Мұндай келiсiмге қол жетпеген жағдайда бiр немесе бiрнеше мұрагердiң талап етуiмен өсиеттi орындаушыны сот тағайындауы мүмкiн.
Өсиеттi орындаушы өсиет бойынша мұрагерлердi бұл жөнiнде күнi бұрын хабардар етiп, өзiне өсиет қалдырушы жүктеген мiндеттердi атқарудан кез келген уақытта бас тартуға құқылы. Өсиеттi орындаушы өз мiндеттерiнен мұрагерлердiң арызымен соттың шешiмi бойынша да босатылуы мүмкiн.
2. Өсиеттi орындаушы: 1) мұраны қорғауды және оны басқаруды жүзеге асыруға;
2) мұраның өз пайдасына ашылуы туралы барлық мұрагерлер мен бас тартылушыларды хабардар ету үшiн мүмкiн болған барлық шараларды қолдануға ;
3) мұра қалдырушыға тиесiлi ақша сомасын алуға; 4) мұра қалдырушының еркi мен заң актiлерiне сәйкес мұрагерлерге өздерiне
тиесiлi мүлiктi беруге;
5) мұрагерлердiң оларға жүктелген өсиеттiк бас тартуды орындауын қамтамасыз етуге (осы Кодекстiң 1057-бабы);
6) өсиеттiк жүктеудi атқаруға не өсиет бойынша мұрагерлерден өсиеттiк жүктеудi атқаруды талап етуге (осы Кодекстiң 1058-бабы);
7) мұраны борыштардан тазартуға тиiс. 3. Өсиеттi орындаушы өз атынан сот iстерiне және мұраны басқару мен
өсиеттi орындауға байланысты басқа iстерге араласуға құқылы, сондай-ақ мұндай iстерге қатысуға тартылуы мүмкiн.
4. Өсиеттi орындаушы мұраны борыштардан тазарту, мұра қалдырушыға тиесiлi сомаларды өндiрiп алу және барлық мұрагерлердiң мұраны иеленуге кiрiсуi үшiн қажеттi қисынды мерзiм iшiнде өз қызметiн жүзеге асырады.
5. Өсиеттi орындаушының мұраны басқару мен өсиеттi орындау жөнiндегi қажеттi шығындарды мұраның есебiнен өтеуге құқығы бар. Өсиетте өсиеттi орындаушыға мұраның есебiнен сыйақы төлеу көзделуi мүмкiн.
6. Өсиет орындалғаннан кейiн өсиеттi орындаушы мұрагерлерге олардың талап етуi бойынша есеп беруге мiндеттi.
59-тарау. Заңды мұрагерлік
1060-бап. Жалпы ережелер
1. Заң бойынша мұрагерлер осы Кодекстiң 1061-1064-баптарында көзделген кезек тәртiбiмен мұрагерлiкке шақырылады.
2. Заң бойынша мұрагерлiк кезiнде, бiр жағынан, асырап алынған және оның ұрпақтары және екiншi жағынан, асырап алушы мен оның туыстары қандас туыстарға теңестiрiледi.
Асырап алынғандар мен олардың ұрпақтары асырап алынушының туған ата-анасы, оның басқа да қандас туыстары қайтыс болғаннан кейiн заң бойынша мұрагер болмайды.
Асырап алынушылардың ата-анасы мен оның басқа да қандас туыстары асырап алынушы және оның ұрпақтары қайтыс болғаннан кейiн заң бойынша мұрагер болмайды.
3. Заң бойынша мұрагерлердiң әрбiр келесi кезегi алдыңғы кезектегi мұрагерлер болмаған, оларды мұрадан шеттеткен, олар мұраны қабылдамаған не одан бас тартқан жағдайда, осы кодекстiң 1074-бабының 5-тармағында аталған жағдайларды қоспағанда, мұрагерлiк құқығын алады.
4. Осы Кодекстiң заң бойынша мұрагерлердi мұрагерлiкке шақырудың кезектiлiгi туралы және олардың мұрадағы үлестерiнiң мөлшерi туралы ережелерi мүдделi мұрагерлердiң мұра ашылғаннан кейiн жасалып, нотариат
куәландырған келiсiмiмен өзгертiлуi мүмкін. Мұндай келiсiм оған қатыспайтын мұрагерлердiң, сондай-ақ мiндеттi үлеске құқығы бар мұрагерлердiң құқықтарын қозғамауы тиiс.
Ескерту. 1060-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1061-бап. Заң бойынша мұрагерлердiң бiрiншi кезегi
1. Заң бойынша мұрагер болу құқығын бiрiншi кезекте мұра қалдырушының балалары, оның iшiнде ол қайтыс болғаннан кейiн тiрi туған балалары, сондай-ақ мұра қалдырушының жұбайы (зайыбы) мен ата-анасы тең үлеспен алады.
2. Мұра қалдырушының немерелерi мен олардың ұрпақтары ұсыну құқығы бойынша мұра алады.
Ескерту. 1061-бап жаңа редакцияда - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1062-бап. Заң бойынша мұрагерлердiң екiншi кезегі
1. Егер бiрiншi кезектегi мұрагерлер болмаса, заң бойынша мұрагер болу құқығын екiншi кезекте мұра қалдырушының бiр әке, бiр шешеден туған және әкесi немесе шешесi бөлек аға-iнiлерi мен апа-қарындастары (сiңлiлерi), сондай-ақ оның әкесi жағынан да, анасы жағынан да атасы мен әжесi - тең үлеспен алады.
2. Мұра қалдырушының бiр әке, бiр шешеден туған және әкесi немесе шешесi бөлек аға-iнiлерi мен апа-қарындастарының (сiңлiлерiнiң) балалары (мұра қалдырушының немере iнi-қарындастары, жиендерi) мұраны ұсыну құқығы бойынша алады.
Ескерту. 1062-бап жаңа редакцияда - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1063-бап. Заң бойынша мұрагерлердiң үшiншi кезегi
1. Егер бiрiншi және екiншi кезектегi мұрагерлер болмаса, заң бойынша мұрагер болу құқығын үшiншi кезекте мұра қалдырушының әкесiмен бiрге туған ағалары мен апалары, нағашы ағалары мен нағашы апалары тең үлеспен алады.
2. Мұра қалдырушының немере аға-iнiлерi, апа-қарындастары (сiңлiлерi) мұраны ұсыну құқығы бойынша алады.
Ескерту. 1063-бап жаңа редакцияда - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1064-бап. Кейiнгi кезектегi мұрагерлер
1. Егер бiрiншi, екiншi және үшiншi кезектегi мұрагерлер болмаса, заң бойынша мұрагерлiк құқығын мұра қалдырушының алдыңғы кезектердегi мұрагерлерiне жатпайтын, үшiншi, төртiншi және бесiншi туыстық дәрежесiндегi туыстары алады.
Туыстық дәрежесi туыстарды бiр-бiрiнен сатылап алшақтататын туу санымен айқындалады. Мұра қалдырушының өзiнiң дүниеге келуi бұл қатарға жатпайды.
2. Осы баптың 1-тармағына сәйкес мұрагерлiкке: төртiншi кезектегi мұрагерлер ретiнде үшiншi туыстық дәрежесiндегi туыстар
- мұра қалдырушының арғы аталары мен әжелерi; бесiншi кезектегi мұрагерлер ретiнде төртiншi туыстық дәрежесiндегi
туыстар - мұра қалдырушының туған немере iнi-қарындастарының, жиендерiнiң балалары (шөбере iнi-қарындастары, жиеншарлары) және оның аталары мен әжелерiнiң туған аға-iнiлерi мен апа-қарындастары (сiңлiлерi);
алтыншы кезектегi мұрагерлер ретiнде бесiншi туыстық дәрежесiндегi туыстар - мұра қалдырушының шөбере iнi-қарындастарының, жиеншарларының балалары, оның немере аға-iнiлерi мен апа-қарындастарының (сiңлiлерiнiң) балалары және оның екi атадан қосылатын аталары мен әжелерiнiң балалары шақырылады.
3. Егер алдыңғы кезектердегi мұрагерлер болмаса, заң бойынша жетiншi кезектегi мұрагерлер ретiнде мұра қалдырушымен кемiнде он жыл бiр отбасында тұрған мұра қалдырушының өгей әкесiне не өгей шешесiне ерiп келген аға-iнiлерi мен апа-қарындастары (сiңлiлерi), өгей ұлдары, өгей қыздары, өгей әкесi және өгей шешесi шақырылады.
Ескерту. 1064-бап жаңа редакцияда - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1065-бап. <*>
Ескерту. 1065-бап алып тасталды - Қазақстан Республикасының 2007.01.12. N З а ң ы м е н .2 2 5
1066-бап. <*>
Ескерту. 1066-бап алып тасталды - Қазақстан Республикасының 2007.01.12. N З а ң ы м е н .2 2 5
1067-бап. Ұсыну құқығы бойынша мұрагерлiк
1. Мұра ашылғанға дейiн немесе мұра қалдырушымен бiр мезгiлде қайтыс болған заңды мұрагердiң үлесi осы Кодекстiң 1061-бабының 2-тармағында, 1062- бабының 2-тармағында және 1063-бабының 2-тармағында көзделген жағдайларда ұсыну құқығы бойынша оның тиiстi ұрпақтарына өтедi және олардың арасында тең бөлiнедi.
2. Мұра ашылғанға дейiн немесе мұра қалдырушымен бiр мезгiлде қайтыс болған және осы Кодекстiң 1045-бабына сәйкес мұра алу құқығын иелене алмайтын мұрагердiң ұрпақтары ұсыну құқығы бойынша мұрагер болмайды.
Ескерту. 1067-бап жаңа редакцияда - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1068-бап. Мұра қалдырушының асырауындағы еңбекке жарамсыз адамдар
1. Егер мұра қалдырушымен бiрге тұрғандығына немесе тұрмағандығына қарамастан, мұра қалдырушы қайтыс болғанға дейiн кемiнде бiр жыл оның асырауында болса, осы Кодекстiң 1062, 1063, 1064-баптарында көрсетiлген, заң бойынша мұрагерлерге жататын, мұраның ашылу күнiне дейiн еңбекке жарамсыз болған, бiрақ мұрагерлiкке шақырылатын кезектегi мұрагерлердiң тобына кiрмейтiн азаматтар заң бойынша осы кезектегi мұрагерлермен бiрге және тең мұра алады.
2. Осы Кодекстің , , , аталған мұрагерлер1061 1062 1063 1064-баптарында тобына кірмейтін, бірақ мұраның ашылу күніне еңбекке жарамсыз болып табылған және мұра қалдырушы қайтыс болғанға дейін кемінде бір жыл оның асырауында болған және онымен бірге тұрған заң бойынша мұрагерлер мұрагер болуға шақырылатын кезектегi мұрагерлермен бiрге және тең мұра алады.
Заң бойынша басқа мұрагер болмаған кезде осы баптың 2-тармағында көрсетiлген мұра қалдырушының асырауындағы еңбекке жарамсыз адамдар сегiзiншi кезектегi мұрагерлер ретiнде өз бетiнше мұра алады.
Ескерту. 1068-бап жаңа редакцияда - ҚР 2007.01.12. N 225 Заңымен; өзгеріс енгізілді - ҚР 21.01.2019 № 217-VI (алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1069-бап. Мұрадағы мiндеттi үлеске құқық
1. Мұра қалдырушының кәмелетке толмаған немесе еңбекке жарамсыз балалары, сондай-ақ оның еңбекке жарамсыз жұбайы мен ата-анасы, өсиеттiң мазмұнына қарамастан, заң бойынша мұрагерлiк кезiнде олардың әрқайсысына тиесiлi болатын үлестiң (мiндеттi үлес) кемінде жартысын мұраға алады.
2. Мұндай үлеске құқығы бар мұрагер өсиет бойынша және (немесе) заң бойынша мұрадан алатынның барлығы, оның iшiнде әдеттегi үй жабдықтары мен үй-iшi тұрмысында ұсталатын заттардан тұратын мүлiктiң құны және мұндай мұрагердiң пайдасына белгiленген өсиеттiк бас тартудың құны, мiндеттi үлеске есептеледi.
3. Мұрадағы мiндеттi үлеске құқығы бар мұрагер үшiн өсиетте белгіленген кез келген шектеулер мен жүктеулер өзіне ауысатын мұраның мiндеттi үлесiнен асатын бөлігіне қатысты ғана жарамды болады.
1070-бап. Мұра алу кезiндегi ерлi-зайыптылардың құқықтары
1. Ерлi-зайыптыларға өсиетке немесе заңға орай тиесiлi мұрагерлiк құқықтың мұра қалдырушымен некеде тұру жағдайына байланысты оның басқа да мүліктік құқықтарына, оның ішінде мүліктің некеде тұрғанда бірге тапқан бөлігіне меншiк құқығына қатысы жоқ.
2. Егер мұра қалдырушымен неке мұра ашылғанға дейiн iс жүзінде тоқтатылғандығы және ерлі-зайыптылардың мұра ашылғанға дейін кемінде бес жыл бөлек тұрғандығы дәлелденсе, сот шешiмiмен ерлi-зайыптылар заң бойынша мұрагерлiктен шеттетiлуi мүмкiн.
1071-бап. Мұраны қорғау және заң бойынша мұрагерлiк кезiнде оны басқару
1. Мүлiктiң бiр бөлiгi өсиет бойынша мұраға қалдырылған жағдайда мұра қалдырушы тағайындаған өсиеттi орындаушы мұраның заң бойынша мұрагерлiк тәртiбiмен ауысатын бөлiгiн де қоса алғанда, барлық мұраны қорғауды және оны басқаруды жүзеге асырады.
Егер заң бойынша мұрагерлер мұраның заң бойынша мұрагерлiк тәртiбiмен ауысатын бөлiгiне қатысты көрсетiлген мiндеттердi атқару үшiн мұраны сенiмгерлiкпен басқарушыны тағайындауды талап етпесе, тұтас алғанда бүкiл мұраны қорғау және оны басқару жөнiндегi мiндеттердi осы Кодекстiң 1059- бабына сәйкес өсиет бойынша мұрагерлер немесе сот тағайындаған өсиеттi орындаушы жүзеге асырады.
2. Мұраны сенiмгерлiкпен басқарушыны заң бойынша бiр немесе бiрнеше мұрагердiң өтiнiшiмен мұраның ашылған жерi бойынша нотариус тағайындайды. Мұраны басқарушыны тағайындаумен немесе оны таңдаумен келiспеген заң бойынша мұрагер сотта мұраны сенiмгерлiкпен басқарушының тағайындалуына дау айтуға құқылы.
3. Егер заң бойынша мұрагерлер болмаса не белгiсiз болса, республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдары мұраны сенiмгерлiкпен басқарушыны тағайындау туралы нотариусқа жүгiнуге тиiс. Заң бойынша мұрагерлер келген жағдайда, олардың талап етуi бойынша мұраны сенiмгерлiкпен басқарушы мұраның есебiнен оған қажеттi шығындар өтелiп, қисынды сыйақы төлене отырып керi шақырып алынуы мүмкiн.
4. Мұраны сенімгерлiкпен басқарушы заңды мұрагерліктiң ерекшелiктерiнен өзгеше туындамағандықтан, өсиеттi орындаушыға қатысты осы Кодекстiң 1059- бабында көзделген өкiлеттiктi жүзеге асырады.
5. Мұраны сенiмгерлiкпен басқарушының мұра есебiнен мұраны қорғау және оны басқару жөнiндегi қажеттi шығындарды өтеттiруге, ал егер оның мұрагерлермен келiсiмiнде өзгеше көзделмесе, сыйақы алуға да құқығы бар.
Ескерту. 1071-бапқа өзгерту енгізілді - ҚР 2004.12.20 N 13 (2005.01.01 бастап қолданысқа енгізіледі), 2011.03.01 N 414-IV (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
60-тарау. Мұра алу
1072-бап. Мұраны қабылдау
1. Мұрагер мұраны алу үшін оны қабылдауға тиіс. 2. Мұрагердiң мұраның бiр бөлiгiн қабылдағаны өзiне тиесiлi барлық мұраны
қабылдағанын бiлдiредi. Мұрагердi бiр мезгiлде бiрнеше негiздер бойынша мұра алуға шақырған кезде
мұрагер осы негiздердiң бiрi бойынша, оның бiрнешеуi бойынша немесе барлық негiздер бойынша өзiне тиесiлi мұраны қабылдай алады.
Мұраны шартпен немесе ескертпелермен қабылдауға жол берiлмейдi. 3. Мұраны бiр немесе бiрнеше мұрагердiң қабылдағаны мұраны қалған
мұрагерлердiң қабылдағанын бiлдiрмейдi. 4. Қабылданған мұра, оны iс жүзiнде қабылдаған уақытқа қарамастан,
сондай-ақ мұрагердiң мұраға қалдырған мүлiкке құқығы мемлекеттiк тiркелуге тиiстi болғанда, мұндай құқықтың мемлекеттiк тiркелген кезiне қарамастан, мұраның ашылған күнiнен бастап мұрагерге тиесiлi деп танылады.
Ескерту. 1072-бап жаңа редакцияда - ҚР 2007.01.12 N 225 Заңымен, өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1072-1-бап. Мұра қабылдау тәсiлдерi
1. Мұраны қабылдау мұра ашылған жердегi нотариусқа немесе заңға сәйкес мұра алу құқығы туралы куәлiктi беруге уәкiлеттi лауазымды адамға мұрагердiң мұраны қабылдау туралы өтiнiшiн не мұрагердiң мұраға құқық туралы куәлiк беру туралы өтiнiшiн беру арқылы жүзеге асырылады.
Егер мұрагердiң өтiнiшiн нотариусқа басқа адам берсе немесе ол почта арқылы жiберiлсе, өтiнiштегi мұрагердiң қолын нотариус, нотариат әрекеттерiн жасауға уәкiлеттi лауазымды адам (ocы Кодекстiң 1051-бабының 5-тармағы) немесе осы Кодекстiң 167-бабының 3-тармағына сәйкес сенiмхатты куәландыруға уәкiлеттi адам куәландыруға тиiс.
Егер сенiмхатта мұраны алуға өкiлеттiк арнайы көзделсе, мұраны өкiл арқылы қабылдау мүмкiн болады. Заңды өкiлдiң мұраны қабылдауы үшiн сенiмхат талап етiлмейдi.
2. Егер мұрагер мұрагерлiктi iс жүзiнде қабылдағанын куәландыратын iс-әрекеттер жасаған болса, атап айтқанда, мұрагер:
мұраға алынған мүлiктi иеленуге немесе басқаруға кiрiссе; мұраға алынған мүлiктi сақтау, оны қол сұғудан немесе үшiншi тұлғалардың
талаптарынан қорғау жөнiнде шаралар қабылдаса; мұраға алынған мүлiктi ұстау шығыстарын өз есебiнен жүргiзсе;
өз есебiнен мұра қалдырушының қарыздарын төлеген немесе мұра қалдырушыға тиесiлi ақшаны үшiншi тұлғалардан алған болса, өзгеше дәлелденгенге дейiн мұрагер мұраны қабылдады деп танылады.
Ескерту. 1072-1-баппен толықтырылды - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1072-2-бап. Мұраны қабылдау мерзiмi
1. Мұраның ашылу күнiнен бастап алты ай iшiнде мұра қабылдануы мүмкін. Мұра азаматтың болжамды қайтыс болған немесе ол қайтыс болды деп
жарияланған күнi ашылған жағдайда (осы Кодекстiң 1042-бабының 2-тармағы) - мұра қалдырушы қайтыс болған күннен бастап алты айдың iшiнде, ал ол қайтыс
болды деп жарияланған кезде, егер соттың шешiмiнде өзге күн көрсетiлмесе, азаматты қайтыс болды деп жариялау туралы сот шешiмi заңды күшiне енген күннен бастап мұра қабылдануы мүмкiн.
2. Егер мұрагерлiк құқығы басқа адамдар үшiн мұрагердiң мұрадан бас тартуы, басқа мұрагердiң мұраны қабылдамауы немесе мұрагердi осы Кодекстiң 1045-бабында белгiленген негiздер бойынша мұрадан шеттету салдарынан туындаса, мұндай адамдар оларда мұраға құқық туындаған күннен бастап алты айдың iшiнде мұраны қабылдай алады.
Ескерту. 1072-2-баппен толықтырылды - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1072-3-бап. Белгiленген мерзiмнiң аяқталуына қарай мұраны қабылдау
Егер мұрагер мұраны қабылдау үшiн белгiленген мерзiмдi (осы Кодекстiң 1072-2-бабы) дәлелдi себептер бойынша өткiзiп алған болса және мұраны қабылдау үшiн белгiленген мерзiмдi өткiзiп алған мұрагер бұл мерзiмдi өткiзу себептерi жойылғаннан кейiн алты айдың iшiнде сотқа жүгiнген жағдайда осы мерзiмдi өткiзiп алған мұрагердiң өтiнiшi бойынша сот бұл мерзiмдi қалпына келтiре алады және мұрагер мұраны қабылдады деп тани алады.
Мұрагер мұраны қабылдады деп танылған кезде сот барлық мұрагерлердiң мұрагерлiк мүлiктегi үлестерiн анықтайды және қажет болған жағдайда жаңа мұрагердiң мұрадан өзiне тиесiлi үлесiн алу құқығын қорғау жөнiнде шаралар белгiлейдi. Бұған дейiн берiлген мұраға құқық туралы куәлiктердi сот жарамсыз деп таниды.
Ескерту. 1072-3-баппен толықтырылды - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1072-4-бап. Мұраны қабылдау құқығының ауысуы (мұрагерлiк трансмиссия)
Егер заң бойынша немесе өсиет бойынша мұрагер мұраны осы Кодекстiң 1072-2-бабында белгiленген мерзiмде қабылдап үлгермей, мұра ашылғаннан кейiн қайтыс болса, онда мұраның оған тиесiлi үлесiн қабылдау құқығы оның мұрагерлерiне ауысады.
Қайтыс болған мұрагердiң осы құқығын оның мұрагерлерi мұраны қабылдауға арналған мерзiмнiң қалған бөлiгi iшiнде жалпы негiздерде жүзеге асыра алады.
Егер мерзiмнiң қалған бөлiгi үш айдан аз болса, ол үш айға дейiн ұзартылады.
Мұраны қабылдау үшiн белгiленген мерзiм аяқталғаннан кейiн, егер сот қайтыс болған мұрагердiң мұрагерлерiнiң осы мерзiмдi өткiзiп алу себептерiн дәлелдi деп тапса, онда сот оларды осы Кодекстiң 1072-3-бабына сәйкес мұраны қабылдады деп тануы мүмкiн.
Мұрагердiң осы Кодекстiң 1069-бабына сәйкес мiндеттi үлес ретiнде мұраның бiр бөлiгiн қабылдау құқығы оның мұрагерлерiне ауыспайды.
Ескерту. 1072-4-баппен толықтырылды - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1073-бап. Мұраға құқық туралы куәлiк беру
1. Мұра ашылған жер бойынша нотариус мұрагердiң өтiнiшiмен оған мұрагерлiкке құқық туралы куәлiк беруге мiндеттi.
2. Мұрагерлiкке құқық туралы куәлiк мұра ашылған күннен бастап алты ай өткеннен кейiн берiледi.
Өсиет бойынша да, заң бойынша да мұрагерлiк кезiнде, егер нотариуста куәлiк берiлуiн сұраған адамдардан басқа тиiстi мүлiкке не бүкiл мұраға қатысты басқа мұрагерлер туралы анық деректер болмаса, куәлiк аталған мерзiм өткенге дейiн де берiлуi мүмкiн.
3. Мұраға құқық туралы куәлiкті беру бойға біткен, бiрақ әлi туылмаған мұрагер болған кезде ол туылғанға дейін тоқтатыла тұрады.
Ескерту. 1073-бапқа өзгеріс енгізілді - ҚР 21.01.2019 № 217-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1074-бап. Мұрадан бас тарту құқығы
1. Мұрагер мұра ашылған күннен бастап алты айдың ішінде мұрадан бас тартуға құқылы. Дәлелдi себептер болған жағдайда бұл мерзімді сот ұзартуы мүмкін, алайда бұл екі айдан аспауға тиіс.
2. Мұрадан бас тарту мұрагердiң мұраның ашылған жерi бойынша нотариусқа арыз беруiмен жасалады.
Егер сенiмхатта бас тартуға өкілеттік арнайы көзделсе, мұрадан өкiл арқылы бас тартуға болады.
3. Мұрадан бас тартуды кейiннен күшiн жоюға немесе қайтарып алуға болмайды.
4. Мұрагер өзiне сол үшiн берiлген мерзiм өткеннен кейiн мұрадан бас тарту құқығын жоғалтады. Егер ол мұраға қалдырған мүлiктi iс жүзiнде иеленуге
кiрiссе не оған билiк етсе, не оның осы мүлiкке құқықтарын куәландыратын құжаттарды алуға өтiнiш жасаса, ол бұл құқықты аталған мерзiм өткенге дейiн де жоғалтады.
5. Мұрагер мұрадан бас тартқан кезде өзiнiң өсиет бойынша немесе кез келген кезектегi заң бойынша мұрагердiң қатарындағы басқа адамдардың пайдасына, оның iшiнде ұсыну құқығы бойынша мұра алуға шақырылған адамдардың пайдасына бас тартатындығын көрсетуге құқылы.
Өсиет қалдырушы мұрадан айырған мұрагерлердiң пайдасына мұрадан бас тартуға жол берiлмейдi.
6. Егер мұрагер өсиет бойынша да, заң бойынша да мұрагерлiкке шақырылса, ол осы негiздемелердiң бiреуi бойынша немесе екi негiздеме бойынша өзiне тиесiлi мұрадан бас тартуға құқылы.
7. Мұрагер мұраның басқа бөлiгi мұраға қалдырылуына қарамастан, үстелу құқығы бойынша өзiне тиесiлi мұрадан бас тартуға құқылы (осы Кодекстiң 1079- бабы).
8. Осы бапта көзделген жағдайларды қоспағанда, мұраның бiр бөлігінен бас тартуға, мұрадан Ескерту жасап немесе шарт қойып бас тартуға жол берiлмейдi.
Ескерту. 1074-бапқа өзгеріс енгізілді - ҚР 2007.01.12 N 225 , 2011.03.25 N 421 -IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңдарымен.
1075-бап. Өсиеттiк бас тартуды алудан бас тарту құқығы
1. Бас тартылушы өсиеттiк бас тартудан бас тартуға құқылы. ішiнара бас тартуға, Ескерту жасап, шарт қойып немесе басқа адамның пайдасына бас тартуға жол берiлмейдi.
2. Осы бапта көзделген құқық бiр мезгiлде мұрагер болып табылатын бас тартылушының мұрадан бас тарту құқығына байланысты емес.
3. Егер бас тартылушы осы бапта көзделген құқықты пайдаланса, өсиеттiк бас тарту жүктелген мұрагер оны орындау мiндетiнен босатылады.
1076-бап. Мұраны бөлу
1. Мұраны қабылдаған кез келген заң бойынша мұрагер мұраны бөлудi талап етуге құқылы.
Мұраны бөлу мұрагерлердiң келiсiмi бойынша оларға тиесiлi үлестерге сәйкес, ал келiсiмге қол жетпеген кезде - сот тәртiбiмен жүргiзiледi.
Егер мұраның құрамына мұраға қалдырушының құқықтары тіркелмеген және тіркелмесе туындаған деп есептелмейтін мүлік кірсе, мұрагерлер арасында
мүлікті бөлу мұраға қалдырушының құқықтары заңнамада белгіленген тәртіппен тіркелгеннен кейін жүргізіледі.
2. Осы баптың ережелерi барлық мұра немесе оның бiр бөлiгi мұрагерлерге нақты мүлiк көрсетiлмеген үлеспен өсиет етiлген жағдайда, мұрагерлердiң арасында мұраны өсиет бойынша бөлуге қолданылады.
Ескерту. 1076-бапқа өзгеріс енгізілді - ҚР 2011.03.25 N 421-IV (алғашқы ресми жарияланғанынан кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі) Заңымен.
1077-бап. Болмаған мұрагерлердiң құқықтары
1. Егер мұрагерлердiң арасында тұратын жерi белгiсiз адамдар болса, қалған мұрагерлер, өсиеттi орындаушы (мұраны басқарушы) және нотариус олардың тұратын жерiн анықтауға және оларды мұрагерлiкке шақыруға қисынды шаралар қолдануға мiндеттi.
2. Егер тұратын жерi анықталған, мұрагерлiкке шақырылып, болмай қалған мұрагер осы Кодекстiң 1074-бабында көзделген мерзiм iшiнде мұрагерлiктен бас тартпаса, қалған мұрагерлер өздерiнiң мұраны бөлiсудi жүргiзу ниетi туралы хабардар етуге мiндеттi.
Егер осының алдындағы бөлiкте көзделген хабардар ету кезiнен бастап үш айдың iшiнде болмай қалған мұрагер мұраны бөлу туралы келiсiмге қатысу тiлегi туралы қалған мұрагерлердi хабардар етпесе, қалған мұрагерлер болмаған мұрагерге тиесiлi үлестi бөлек шығарып, өзара келiсiм бойынша бөлiстi жүргiзуге құқылы.
3. Егер мұра ашылған күннен бастап бiр жылдың iшiнде болмаған мұрагердiң тұратын жерi анықталмаса және оның мұрадан бас тартқандығы туралы мәлiметтер болмаса, қалған мұрагерлер бөлiстi осы баптың 2-тармағы екiншi бөлiгiнiң ережелерi бойынша жүргiзуге құқылы.
4. Iште қалған, бiрақ әлi тумаған мұрагер болған кезде мұраны бөлу тек мұндай мұрагер туғаннан кейiн ғана жүргiзiлуi мүмкiн.
Егер iште қалған мұрагер тiрi туса, қалған мұрагерлер оған тиесiлi мұралық үлестi бөлiп шығару арқылы ғана мұра бөлудi жүргiзуге құқылы. Жаңа туған баланың мүдделерiн қорғау үшiн бөлiске қатысуға қорғаншылық және қамқоршылық органның өкiлi шақырылуы мүмкiн.
1078-бап. Жекелеген мұрагерлердiң мұраға кiретiн мүлiкке басым құқығы
1. Мұра ашылғанға дейiнгi бiр жыл iшiнде мұра қалдырушымен бiрге тұрған мұрагерлер тұрғын үйдi, сондай-ақ үй жабдықтары мен үй-iшi тұрмысы заттарын мұраға алуға басым құқыққа ие болады.
2. Мұра қалдырушымен бiрге мүлiкке ортақ меншiк құқығы бар мұрагерлер ортақ меншiкте болған мүлiктi мұраға алуға басым құқыққа ие болады.
3. Осы баптың 1 және 2-тармақтарында аталған басым құқықты жүзеге асырған кезде бөлiске қатысатын басқа да мұрагерлердiң мүлiктiк мүдделерi сақталуға тиіс. Егер өздерiне тиесiлi үлестердi беру үшiн мұраны құрайтын мүлiк жеткiлiксiз болса, басым құқықты жүзеге асыратын мұрагер оларға тиiсiнше ақшалай немесе мүлiктiк өтемақы беруге тиiс.
1079-бап. Мұралық үлестердiң үстелуi
1. Мұрагер мұрадан бас тартқан не ол осы Кодексте аталған мән-жайлар бойынша шығып қалған жағдайда мұраның мұндай мұрагерге есептелуге тиiс бөлiгi мұрагерлiкке шақырылған заң бойынша мұрагерлерге түседi және олардың арасында өздерiнiң мұралық үлестерiне бара-бар бөлiнедi.
Егер мұра қалдырушы барлық мүлiктi өзi тағайындаған мұрагерлерге өсиет етсе, мұрадан бас тартқан немесе шығып қалған мұрагерге тиесiлi мұра бөлiгi өсиет бойынша қалған мұрагерлерге түседi және өсиетте өзгеше көзделмегендiктен, олардың арасында өздерiнiң мұралық үлестерiне бара-бар бөлiнедi.
2. Осы баптың 1-тармағындағы ережелер: 1) егер бас тартқан немесе шығып қалған мұрагердің орнына мұрагер
қосымша тағайындалса; 2) мұрагер белгiлi бiр тұлғаның пайдасына мұрадан бас тартқан кезде;
3) заң бойынша мұрагерлiк кезiнде мұрагердiң бас тартуы немесе шығып қалуы келесi кезектегi мұрагерлердi мұрагерлiкке шақыруға әкеп соққан жағдайларда қолданылмайды.
1080-бап. Мұраның есебiнен төлеуге жататын шығындар
Мұра қалдырушының қайтыс болар алдындағы науқасы туғызған қажеттi шығындарды, мұра қалдырушыны жерлеуге арналған шығындарды, мұраны қорғауға, басқаруға, өсиеттi орындауға, сондай-ақ өсиеттi орындаушыға немесе мұраны сенiмгерлiкпен басқарушыға сыйақы төлеуге байланысты шығындарды өтеу туралы талаптар ол мұрагерлер арасында бөлiнгенге дейiн мұра есебiнен қанағаттандырылуға тиiс. Бұл талаптар барлық басқа, оның iшiнде кепiлмен қамтамасыз етiлген талаптардың алдында мұраның құнынан басымдықпен қанағаттандырылуға тиiс.
1081-бап. Мұра қалдырушының борыштарын кредит берушiлердiң өндiрiп алуы
Мұра қалдырушының кредит берушiлерi өздерiнiң мұра қалдырушының мiндеттемелерiнен туындайтын талаптарын өсиеттi орындаушыға (мұраны сенімгерлікпен басқарушыға) немесе әрбір мұрагерге ауысқан мүлiк құнының шегiнде ортақ борышқорлар ретiнде жауап беретiн мұрагерлерге қоюға құқылы.
Егер мұра алған мұрагерлер мұраның құрамына кіретін мүлікті немесе оған құқықтарды тіркеуден жалтарған жағдайда, мұра қалдырушының кредиторлары мәжбүрлеп тіркеуді талап етуге құқылы.
Ескерту. 1081-бапқа өзгеріс енгізілді - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1082-бап. Шаруа немесе фермер қожалығындағы мұрагерлiк
Шаруа немесе фермер қожалығының мүшесi қайтыс болған жағдайда мұра жалпы ережелер бойынша ашылады. Мұрагердiң осы мүлiкке жалпы меншiктегi оның үлесiне мөлшерлес ақшалай өтемақы алуға құқығы бар.
Ескерту. 1082-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1083-бап. Иесiз қалған мүлік
Ескерту. 1083-баптың тақырыбына өзгеріс енгізілді - ҚР 2011.03.01 N 414-IV Заңымен (алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі).
1. Егер өсиет бойынша да заң бойынша да, мұрагерлер болмаса не мұрагерлердiң ешқайсысының мұра алуға құқығы болмаса (осы Кодекстiң 1045- бабы), не олардың бәрi мұрадан бас тартса (осы Кодекстiң 1074-бабы), мұра иесiз қалған мүлік деп танылады.
2. Иесiз қалған мүлік мұраның ашылған жерi бойынша коммуналдық меншiкке ауысады.
Коммуналдық меншiкке түскен иесiз қалған мүлiктi есепке алу, сақтау, бағалау, одан әрi пайдалану және сату жөнiндегi жұмыстарды ұйымдастыруды коммуналдық меншiктi басқаруға уәкiлеттi орган жүзеге асырады.
Коммуналдық меншiкке түскен иесiз қалған мүлiктi есепке алу, сақтау, бағалау, одан әрi пайдалану және сату тәртiбiн Қазақстан Республикасының Үкiметi белгiлейдi.
3. Мұра ашылған күннен бастап бiр жыл өткеннен кейiн мұра ашылған жер бойынша республикалық маңызы бар қалалардың, астананың, аудандардың, облыстық маңызы бар қалалардың жергілікті атқарушы органдарының өтініші негiзiнде сот мұраны иесiз қалған мүлік деп таниды. Егер мұраны қорғауға және оны басқаруға байланысты шығындар оның құнынан асып түссе, мұра аталған мерзiм өткенге дейiн иесiз қалған мүлiк деп танылуы мүмкiн.
4. Иесiз қалған мүлiктi қорғау және оны басқару осы Кодекстiң 1071-бабына сәйкес жүзеге асырылады.
5. Осы Кодекстің 1080 және 1081-баптарында көзделген қағидалар иесіз қалған мүлікке де қолданылады.
Ескерту. 1083-бапқа өзгерту енгізілді - ҚР 2001.12.24 N 276, 2004.12.20 N 13 ( 2005.01.01 бастап қолданысқа енгізіледі), 2006.06.22 N 147, 2011.03.01 N 414-IV ( алғашқы ресми жарияланған күнінен бастап қолданысқа енгізіледі) Заңдарымен.
7 бөлім Халықаралық жеке құқық 61-тарау. Жалпы ережелер
1084-бап. Шетелдiк элемент шиеленiстiрген азаматтық-құқықтық қатынастарға қолданылуға тиiстi құқықты анықтау
1. Шетелдiк азаматтардың немесе шетелдiк заңды тұлғалардың қатысуымен не өзге де шетелдік элемент шиеленістірген азаматтық-құқықтық қатынастарға қолданылуға тиiстi құқық осы Кодекстiң, өзге де заң актiлерiнiң, Қазақстан Республикасы бекiткен халықаралық шарттардың және танылған халықаралық ғұрыптардың негiзiнде анықталады.
2. Егер осы баптың 1-тармағына сәйкес қолданылуға тиiстi құқықты анықтау мүмкiн болмаса, шетелдiк элемент шиеленiстiрген азаматтық-құқықтық қатынастармен неғұрлым тығыз байланысты құқық қолданылады.
3. Осы бөлiмнiң сот қолдануға тиiстi құқықты анықтау туралы ережелерiн тиiсiнше қолданылуға тиiстi құқық туралы мәселенi шешуге өкілеттік берілген басқа органдар да қолданады.
1085-бап. Заң ұғымдарын саралау (құқықтық саралау)
1. Сот заң ұғымдарын саралауды (құқықтық саралау), егер заң актiлерiнде өзгеше көзделмесе, оларға сот елiнiң құқығына сәйкес түсiнiк беруге негiздейдi.
2. Егер заң ұғымдары сот елiнiң құқығына белгiсiз болса немесе басқа атаумен немесе басқа мазмұнмен белгiлi болса және сот елiнің құқығы бойынша
түсiндiру арқылы анықтау мүмкiн болмаса, заңдылық ұғымдарды саралау ( құқықтық саралау) кезінде шет мемлекеттiң құқығы да қолданылуы мүмкiн.
1086-бап. Шетел құқығы нормаларының мазмұнын анықтау
1. Шетел құқығын қолданған кезде сот оның нормаларының мазмұнын олардың ресми түсіндірілуіне, қолданылу практикасына және тиiстi шет мемлекеттегi доктринаға сәйкес анықтайды.
2. Шетел құқығы нормаларының мазмұнын анықтау мақсатында сот жәрдем және түсiнiк алу үшiн Қазақстан Республикасының Әдiлет министрлiгiне және Қазақстан Республикасының өзге де құзыреттi органдары мен мекемелерiне, соның iшiнде шетелдерде орналасқандарына белгiленген тәртiппен жүгiнуi не сарапшылар тартуы мүмкiн.
3. Iске қатысушы тұлғалар өз талаптарын немесе қарсылықтарын негiздеуде сiлтеме жасаған шетел құқығы нормаларының мазмұнын растайтын құжаттар табыс етуге және осы нормалардың мазмұнын анықтауда сотқа өзге де түрде жәрдемдесуге құқылы.
4. Егер осы бапқа сәйкес қолданылған шараларға қарамастан, шетелдiк құқық нормаларының мазмұны орынды мерзiмдерде анықталмаса, Қазақстан Республикасының құқығы қолданылады.
1087-бап. Керi сiлтеме жасау және үшiншi елдiң құқығына сiлтеме жасау
1. Осы бөлiмнiң ережелерiне сәйкес кез келген шетел құқығына сiлтеме жасау , осы бапта көзделген жағдайларды қоспағанда, тиiстi елдiң коллизиялық емес, материалдық құқығына сiлтеме жасау ретiнде қарастырылуға тиiс.
2. Қазақстан Республикасының құқығына керi сiлтеме жасау және үшiншi елдiң құқығына сiлтеме жасау осы Кодекстiң 1094-бабына, 1095-бабының 2, 3, 5- тармақтарына, 1097-бабына сәйкес шетел құқығы қолданылған жағдайларда қолданылады.
1088-бап. Заңды айналып өтудiң салдары
Қатынастарға қатысушылардың осы Кодексте реттелетiн, осы бөлiмнiң қолданылуға тиiстi құқық туралы қағидаларын айналып өтiп тиiстi қатынастарды өзге құқыққа жатқызуға бағытталған келiсiмдері мен өзге де әрекеттері маңызсыз болады. Бұл жағдайда осы бөлiмге сәйкес қолданылуға жататын құқық қолданылады.
Ескерту. 1088-бап жаңа редакцияда - ҚР 27.02.2017 № 49-VI Заңымен ( алғашқы ресми жарияланған күнінен кейін күнтізбелік он күн өткен соң қолданысқа енгізіледі).
1089-бап. Өзара түсiнiстiк
1. Шетел құқығын өзара түсiнiстiк негiзiнде қолдану Қазақстан Республикасының заң актiлерiнде көзделген жағдайларды қоспағанда, тиiстi шет мемлекеттегi ұқсас қатынастарға Қазақстан Республикасының құқығын қолдануға болатын-болмайтындығына қарамастан, сот шетел құқығын қолданады.
2. Егер шетел құқығын қолдану өзара түсiнiстiкке байланысты болса, өзгеше дәлелденбегендiктен, ол бар деп ұйғарылады.
1090-бап. Жария тәртiп туралы ескерту
1. Шетел құқығы оны қолдану Қазақстан Республикасы құқықтық тәртiбiнiң негiздерiне (Қазақстан Республикасының жария тәртiбiне) қайшы келерлiк жағдайларда қолданылмайды. Бұл жағдайларда Қазақстан Республикасының құқығы қолданылады.
2. Шетел құқығын қолданудан бас тартуды тиiстi шет мемлекеттiң саяси немесе экономикалық жүйесiнiң Қазақстан Республикасының саяси немесе экономикалық жүйесiнен айырмашылығына ғана негiздеуге болмайды.
1091-бап. Императивтiк нормаларды қолдану
1. Норманың өзiнде көрсетiлуi салдарынан немесе азаматтық айналымға қатысушылардың құқықтарын және заңмен қорғалатын мүдделерiн қамтамасыз ету үшiн олардың ерекше маңызы болуына байланысты, қолданылуға тиісті құқыққа қарамастан, Қазақстан Республикасы заңдарының тиiстi қатынастарды реттейтiн императивтiк нормаларының қолданылуына бұл бөлiм ережелерiнiң қатысы болмайды.
2. Осы бөлiмнiң ережелерiне сәйкес, қандай да болсын бiр елдiң құқығын қолданған кезде сот, егер сол басқа елдiң құқығына сәйкес мұндай нормалар, қолданылуға тиісті құқыққа қарамастан, тиiстi қатынастарды реттеуге тиiс болса, басқа ел құқықтарының қатынаспен тығыз байланысы бар императивтiк нормаларын қолдана алады. Бұл орайда сот мұндай нормалардың мақсаты мен сипатын, сондай-ақ оларды қолданудың салдарын назарға алуға тиіс.
1092-бап. Көп құқықтық жүйелерi бар елдiң құқығын қолдану
Бiрнеше аумақтық немесе құқықтық жүйелер қолданылатын елдiң құқығы қолданылуға тиiс болған жағдайларда, осы елдiң құқығына сәйкес құқықтық жүйе қолданылады.
1093-бап. Реторсиялар
Қазақстан Республикасының азаматтары мен заңды тұлғаларының құқықтарына арнайы шектеулерi бар мемлекеттердiң азаматтары мен заңды тұлғаларының құқықтарына қатысты Қазақстан Республикасы қарсы шектеулер ( реторсиялар) белгiлеуi мүмкiн.
62-тарау. Коллизиялық нормалар Параграф 1. Тұлғалар
1094-бап. Жеке тұлғаның жеке заңы
1. Жеке тұлға азаматы болып табылатын елдiң құқығы оның жеке заңы болып саналады. Адамның екi немесе одан көп азаматтығы болған жағдайда адам неғұрлым тығыз байланысты елдiң құқығы оның жеке заңы болып саналады.
2. Азаматтығы жоқ адам тұрақты тұратын елдiң құқығы, ол адамның жеке заңы болып саналады.
3. Баспана берген елдiң құқығы босқынның жеке заңы болып саналады.
1095-бап. Жеке адамның құқық қабiлеттiлiгi мен әрекетке қабiлеттiлiгi
1. Жеке тұлғаның азаматтық құқық қабiлеттiлiгi оның жеке заңында анықталады. Бұл ретте шетел азаматтары мен азаматтығы жоқ адамдар Қазақстан Республикасында азаматтық құқық қабiлеттiлiгiн, Қазақстан Республикасының заңнамалық актiлерiнде немесе Қазақстан Республикасы ратификациялаған халықаралық шарттарда белгiленген жағдайларды қоспағанда, Қазақстан Республикасының азаматтарымен тең пайдаланады.
2. Жеке адамның әрекетке қабiлеттiлiгi оның жеке заңымен анықталады. 3. Жеке адамның мәмiлелер мен зиян келтiру салдарынан пайда болатын
мiндеттемелерге қатысты азаматтық әрекетке қабiлеттiлiгi мәмiле жасалған немесе зиян келтiруден туындайтын мiндеттемелер пайда болған жердегi елдiң құқығы бойынша анықталады.
4. Жеке адамның жеке кәсiпкер болуға және соған байланысты құқықтары мен мiндеттерiнiң болуға қабiлетi жеке адам жеке кәсiпкер ретiнде тiркелген
елдiң құқығы бойынша анықталады. Тiркелген елi болмаған жағдайда жеке кәсiпкерлiк қызметтi жүзеге асыратын негiзгi орнындағы елдiң құқығы қолданылады.
5. Жеке адамды әрекетке қабiлетсiз немесе қабiлетi шектеулi деп тану сот елiнiң құқығына бағынады.
Ескерту. 1095-бапқа өзгерту енгізілді - Қазақстан Республикасының 2007.01.12. N 225 Заңымен.
1096-бап. Жеке адамды хабар-ошарсыз кеттi деп тану және оны қайтыс болды деп жариялау
Жеке адамды хабар-ошарсыз кеттi деп тану және оны қайтыс болды деп жариялау сот елiнiң құқығына бағынады.
1097-бап. Жеке адамның есімі
Жеке адамның есiм алу, оны пайдалану және қорғау құқығы, егер осы Кодекстiң 15-бабының 5 және 7-тармақтарында, 1103 және 1120-баптарында көзделген ережелерден өзгеше туындамаса, оның жеке заңымен белгiленедi.
1098-бап. Қазақстан Республикасы азаматтарының азаматтық хал актiлерiн Қазақстан Республикасынан тыс жерлерде тiркеу
Қазақстан Республикасынан тыс жерлерде тұратын Қазақстан Республикасы азаматтарының азаматтық хал актiлерiн тiркеу Қазақстан Республикасының консулдық мекемелерінде жүзеге асырылады. Бұл орайда Қазақстан Республикасының заң актiлерi қолданылады.
1099-бап. Шет мемлекет органдары азаматтық хал актiлерiн куәландыруға берген құжаттарды тану
Шет мемлекеттердiң құзыреттi органдары тиістi мемлекеттердің заңы бойынша Қазақстан Республикасының азаматтарына, шетелдік азаматтар мен азаматтығы жоқ адамдарға қатысты Қазақстан Республикасынан тыс жерлерде жасаған азаматтың хал актiлерiн куәландыруға берген құжаттар жария етілген жағдайда Қазақстан Республикасында жарамды деп танылады.
1100-бап. Заңды тұлғаның заңы
Заңды тұлға құрылған елдің құқығы осы заңды тұлғаның заңы болып саналады.
1101-бап. Заңды тұлғаның құқық қабiлеттiлігi
1. Заңды тұлғаның азаматтық құқық қабiлеттiлiгi осы заңды тұлғаның заңымен анықталады.
2. Шетелдiк заңды тұлға өз органының немесе өкiлiнiң мәмiле жасауға өкiлеттiгiн шетелдiк заңды тұлғаның органы немесе өкiлi мәмiле жасаған елдiң құқығына белгiсiз шектеуге сiлтеме жасай алмайды.
3. Шетел құқығы бойынша заңды тұлға болып табылмайтын шетел ұйымдарының азаматтық құқық қабiлеттiлiгi ұйым құрылған елдiң құқығы бойынша анықталады.
Мұндай ұйымдардың қызметiне, егер Қазақстан Республикасының құқығын қолдануға болса, осы Кодекстiң ережелерi қолданылады, егер Қазақстан Республикасының заңдарынан немесе мiндеттеменiң мәнiнен өзгеше туындамайтын болса, олар коммерциялық ұйымдар болып табылатын заңды тұлғалардың қызметiн реттейдi.
1102-бап. Мемлекеттiң шетелдiк элементi бар азаматтық-құқықтық қатынастарға қатысуы
1. Мемлекет қатысатын шетелдiк элементi бар азаматтық-құқықтық қатынастарға, егер Қазақстан Республикасының заңнамалық актiлерiнде өзгеше көзделмесе, осы бөлiмнiң ережелерi жалпы негiздерде қолданылады.
2. Қазақстан Республикасы шетелдiк элементi бар азаматтық-құқықтық қатынастарда, егер:
Қазақстан Республикасының халықаралық шартында; Қазақстан Республикасының халықаралық шарты болып табылмайтын
жазбаша келiсiмде; сотта мәлімдеме жасау немесе нақты iс қарау шеңберiнде жазбаша хабардар
ету арқылы өзгеше белгiленбесе, соттық иммунитеттi, талап қоюды қамтамасыз етуден иммунитеттi және сот актiсiн мәжбүрлеп орындатудан иммунитеттi қоса алғанда, басқа мемлекет соттарының юрисдикциясынан өзiне және өзiнiң меншiгiне қатысты юрисдикциялық иммунитеттi пайдаланады.
Ескерту. 1102-бап жаңа редакцияда - ҚР 2010.02.05 249-IV Заңымен.
Параграф 2. Жеке мүлiктiк емес құқықтар
1103-бап. Жеке мүлiктiк емес құқықтарды қорғау
Жеке мүлiктiк емес құқықтарға мұндай құқықтарды қорғау туралы талап ету үшін негіз болған іс-әрекет немесе өзге де мән-жайлар орын алған елдiң құқығы қолданылады.
Параграф 3. Мәмiлелер, өкiлдiк, талап мерзiмi
1104-бап. Мәмiленiң нысаны
1. Мәмiленiң нысаны ол жасалған жердiң құқығына бағынады. Алайда шетелде жасалған мәмiленi, егер Қазақстан Республикасы құқығының талаптары сақталса, нысанның сақталмауы салдарынан жарамсыз деп тануға болмайды.
2. Қатысушыларының кем дегенде бiреуi Қазақстан Республикасының заңды тұлғасы немесе Қазақстан Республикасының азаматы болып табылатын сыртқы экономикалық мәміле мәміленің жасалған жеріне қарамастан, жазбаша нысанда жасалады.
3. Қозғалмайтын мүлiкке қатысты мәмiленiң нысаны - осы мүлік орналасқан жердегі елдің құқығына, ал Қазақстан Республикасында мемлекеттiк тiзілімге енгiзiлген қозғалмайтын мүлiкке қатысты болса, Қазақстан Республикасының құқығына бағынады.
1105-бап. Сенiмхат
Сенiмхаттың нысаны мен қолданылу мерзiмi осы сенiмхат берiлген елдiң құқығы бойынша анықталады. Алайда сенiмхат Қазақстан Республикасы құқықтарының талаптарын қанағаттандырса, оны нысаны сақталмауының салдарынан жарамсыз деп тануға болмайды.
1106-бап. Талап мерзiмi
1. Талап мерзiмi тиiстi қатынастарды реттеу үшiн қолданылатын елдің құқығы бойынша анықталады.
2. Талап мерзiмi қолданылмайтын талаптар, егер тиiстi қатынасқа қатысушылардың кем дегенде біреуі Қазақстан Республикасының азаматы немесе Қазақстан Республикасының заңды тұлғасы болса, Қазақстан Республикасының құқығы бойынша анықталады.
Параграф 4. Заттық құқықтар
1107-бап. Заттық құқықтарға қолданылатын құқық туралы жалпы ережелер
1. Егер Қазақстан Республикасының заң актілерiнде өзгеше көзделмесе, меншiк құқығы мен басқа да қозғалмайтын және қозғалатын мүлiкке заттық құқықтар осы мүлік орналасқан елдің құқығы бойынша анықталады.
2. Мүлiктiң қозғалмайтын немесе қозғалатын заттарға жататындығы, сондай-ақ мүлiктiң өзге де заңдық саралануы осы мүлiк орналасқан елдiң құқығы бойынша анықталады.
1108-бап. Заттық құқықтардың пайда болуы және тоқтатылуы
1. Мүлiкке заттық құқықтардың пайда болуы және тоқтатылуы, егер Қазақстан Республикасының заң актiлерiнде өзгеше көзделмесе, заттық құқықтың пайда болуы не тоқтатылуы үшiн негiз болған iс-әрекет немесе өзге де мән-жайлар орын алған кезде сол мүлiк болған елдiң құқығы бойынша анықталады.
2. Егер тараптардың келiсiмiнде өзгеше көзделмесе, мәмiленiң нысанасы болып табылатын мүлiкке заттық құқықтардың пайда болуы және тоқтатылуы, елдiң осы мәмiле бағындырылған құқығы бойынша анықталады.
3. Алыну мерзiмiнiң ескiруi салдарынан мүлiкке меншiк құқығының пайда болуы аяқталған алу мерзiмiнiң ескiрген кезiнде болған елдiң құқығымен анықталады.
1109-бап. Мемлекеттiк тiзiлiмге енгiзiлуге тиiстi көлiк құралдары мен өзге де мүлiкке заттық құқықтар
Мемлекеттiк тiркелуге тиiстi көлiк құралдары мен өзге де мүлiкке заттық құқық осы көлiк құралдары немесе мүлiк мемлекеттiк тiзiлiмге енгiзiлген елдiң құқығы бойынша анықталады.
1110-бап. Жолдағы қозғалатын мүлiкке заттық құқықтар
Мәмiле бойынша жолда келе жатқан қозғалатын мүлiкке меншiк құқығы және басқа да заттық құқықтар, егер тараптардың келiсiмiнде өзгеше белгiленбесе, осы мүлiк жөнелтiлген елдiң құқығы бойынша анықталады.
1111-бап. Заттық құқықтарды қорғау
1. Меншiк құқығы мен өзге де заттық құқықтарды қорғауға арыз берушінің таңдауы бойынша мүлік тұрған елдің құқығы немесе сот елiнiң құқығы қолданылады.
2. Қозғалмайтын мүлiкке меншiк құқығы мен өзге де заттық құқықтарды қорғауға осы мүлiк тұрған елдiң құқығы қолданылады. Қазақстан
Республикасының мемлекеттiк тiзiлiмiне енгізілген мүлікке қатысты Қазақстан республикасының құқығы қолданылады.
Параграф 5. Шарттық мiндеттемелер
1112-бап. Шарт тараптарының келiсiмiмен құқық таңдау
1. Егер Қазақстан Республикасының заң актiлерiнде өзгеше көзделмесе, шарт тараптардың келiсiмiмен таңдалған елдiң құқығымен реттеледi.
2. Тараптардың қолданылуға тиiстi құқықты таңдау туралы келiсiмi айқын көрсетiлуге немесе шарттың және оларды жинақтап қарайтын iстiң мән-жайларының ережелерiнен тiкелей туындауға тиiс.
3. Шарттың тараптары тұтас алғанда шарт үшiн де, оның жекелеген бөлiктерi үшiн де қолданылатын құқықты таңдай алады.
4. Шарттың тараптары қолданылатын құқықты кез келген уақытта, шарт жасасу кезiнде де, одан кейiн де таңдап алуы мүмкiн. Тараптар шартқа қолданылатын құқықты өзгерту туралы да кез келген уақытта уағдаласа алады.
1113-бап. Тараптардың келiсiмi болмаған кезде шартқа қолданылатын құқық
1. Шарт тараптарының қолдануға тиiстi құқық туралы келiсiмi болмаған кезде ол шартқа:
1) сатып алу-сату шартында - сатушы; 2) сыйға тарту шартында - сыйға тартушы; 3) мүлiктiк жалдау (жалға алу) шартында - жалға беруші немесе жалдауға
берушi; 4) мүлiктi тегiн пайдалану шартында - несие берушi; 5) мердiгерлiк шартында - мердiгер; 6) тасымалдау шартында - тасымалдаушы; 7) көлiк экспедициясы шартында - экспедитор; 8) қарыз немесе өзге де кредит шартында - кредит берушi; 9) тапсырма шартында - сенiм бiлдiрiлген адам; 10) комиссияның шартында - комиссионер; 11) сақтау шартында - сақтаушы; 12) сақтандыру шартында - сақтандырушы; 13) тапсырма беру шартында - тапсырма берушi; 14) кепiлге салу шартында - кепiлге салушы;
15) айрықша құқықтарды пайдалану туралы лицензиялық шартта - лицензиар болып табылатын тараптар құрылған, тұратын жерi немесе негiзгi қызмет орны бар елдiң құқығы қолданылады.
2. Нысанасы қозғалмайтын зат болып табылатын шарт бойынша, сондай-ақ мүлiктi сенiмгерлiкпен басқару туралы шарт бойынша құқықтар мен мiндеттемелерге сол мүлiк тұрған елдiң құқығы, ал Қазақстан Республикасында мемлекеттiк тiзiлiмге енгiзiлген мүлiкке қатысты - Қазақстан Республикасының құқығы қолданылады.
3. Шарт тараптарының қолданылуға тиiстi құқық туралы келiсiмi болмаған жағдайда осы баптың 1-тармағындағы ережелерге қарамастан:
1) бiрлескен қызмет және құрылыс мердiгерлiгi туралы шартқа мұндай қызмет жүзеге асырылатын немесе шартта көзделген нәтижелер жасалатын елдiң құқығы;
2) конкурстық сауда-саттықтың (тендердiң, аукционның) қорытындылары бойынша немесе биржада жасалған шартқа - конкурстық сауда-саттық өткiзiлген немесе биржа орналасқан елдiң құқығы қолданылады.
4. Осы баптың 1-3-тармақтарында атап келтiрiлген шарттарға, тараптардың қолданылуға тиiстi құқық туралы келiсiмi болмаған кезде, мұндай шарттың мазмұны үшiн шешушi маңызы бар, орындауды жүзеге асыратын тараптар құрылған, тұрғылықты жерi немесе негiзгi қызмет орны болған елдiң құқығы қолданылады. Шарттың мазмұны үшiн шешушi маңызы бар орындауды анықтау мүмкiн болмаған жағдайда шарт мейлiнше тығыз байланысты елдiң құқығы қолданылады.
5. Шарт бойынша орындауды қабылдауға қатысты, тараптар өзгеше келiспегендiктен, осындай қабылдау өткiзетiн орынның құқығы ескерiледi.
6. Егер шартта халықаралық айналымда қабылданған сауда терминдерi пайдаланылса, шартта өзге нұсқаулар болмаған жағдайда оларды iскерлiк айналымның тиiстi сауда терминдерiне қатысты қолданылып жүрген ғұрыптар жөнiндегi қатынастарына қолдануға тараптар келiскен деп есептеледi.
1114-бап. Шетелдiң қатысуымен заңды тұлға құру туралы шартқа қолданылатын құқық
1. Шетелдiң қатысуымен заңды тұлға құру туралы шартқа осы заңды тұлға құрылатын немесе құрылған елдiң құқығы қолданылады.
2. Осы баппен реттелетiн қатынастар өзiне заңды тұлғаны құру және тоқтату, оған қатысу үлесiн беру жөнiндегi қатынастарды және заңды тұлғаның
қатысушылары арасындағы олардың (соның iшiнде кейiнгi келiсiмдермен белгiленетiн) байланысты өзара құқықтары мен міндеттерiне басқа да қатынастарды қамтиды.
3. Осы баптың ережелерi шетел қатысатын заңды тұлға қатысушыларының өзара құқықтары мен мiндеттерi басқа құрылтай құжаттарымен белгiленген жағдайда да қолданылады.
1115-бап. Қолданылатын құқықтың күшiнде болатын саласы
1. Шартқа осы параграф ережелерiне орай қолданылатын құқық, атап айтқанда:
1) шартқа түсіндіруді; 2) тараптардың құқықтары мен мiндеттерiн; 3) шарттың орындалуын; 4) шартты орындамаудың немесе тиiсiнше орындамаудың салдарын; 5) шарттың тоқтатылуын; 6) шарт жарамсыздығының негiздерi мен салдарын; 7) шартқа байланысты талаптарды беру мен қарыз аударуды қамтиды. 2. Орындаудың әдiстерi мен рәсiмдерiне, сондай-ақ тиiсiнше орындалмаған
жағдайда қолданылуға тиіс шараларға қатысты қолданылатын құқықтан басқа орындалу жүргiзiлетiн елдiң құқығы да назарға алынады.
Параграф 6. Шарттан тыс мiндеттемелер
1116-бап. Бiр жақты мәмiлелерден туындайтын мiндеттемелер
Бiр жақты мәмiлелерден туындайтын мiндеттемелерге (марапаттауға жария уәде ету, бөтен адамның мүддесiне тапсырмасыз қызмет iстеу және басқалар) мәмiлелер жасалған жердiң құқығы қолданылады. Бiр жақты мәмiле жасау орны Қазақстан Республикасының құқығы бойынша анықталады.
1117-бап. Зиян келтiру салдарынан туындайтын мiндеттемелер
1. Зиян келтiру салдарынан туындайтын мiндеттемелер жөнiндегi құқықтар мен мiндеттер, зиянды өтеу туралы талап ету үшiн негiз болған iс-әрекет немесе өзге де мән-жай орын алған елдiң құқығы бойынша анықталады.
2. Шетелде зиян келтiру салдарынан туындайтын мiндеттемелер жөнiндегi құқықтар мен мiндеттер, егер тараптар сол бiр мемлекеттiң азаматтары немесе заңды тұлғалары болса, сол мемлекеттiң құқығы бойынша анықталады.
3. Егер iс-әрекет немесе зиянды өтеу туралы талап етуге негiз болған өзге де мән-жай Қазақстан Республикасының заң актілері бойынша заңсыз болмаса, шетел құқығы қолданылмайды.
1118-бап. Тұтынушыға келтiрiлген зиян үшiн жауапкершiлiк
Тұтынушының тауар сатып алуға немесе қызмет көрсетуге байланысты туындаған зиянды өтеу туралы талабына, тұтынушының таңдауы бойынша:
1) тұтынушы тұратын тұрғылықты жердегi елдiң құқығы; 2) өндiрушiнiң немесе қызмет көрсетушi тұлғаның тұрғылықты жерiндегi
немесе орналасқан жерiндегi елдiң құқығы; 3) тұтынушы тауарды сатып алған немесе оған қызмет көрсетiлген елдiң
құқығы қолданылады.
1119-бап. Негiзсiз баю
1. Негiзсiз баюдың салдарынан туындайтын мiндеттемелерге баю орын алған елдiң құқығы қолданылады.
2. Егер негiзсiз баю мүлiк сатып алынған немесе сақталған негiздiң болмауы салдарынан туындаса, қолданылатын құқық осы негiз бағындырылған елдiң құқығы бойынша анықталады.
3. Негізсіз баю ұғымы Қазақстан Республикасының құқығы бойынша анықталады.
Параграф 7. Интеллектуалдық меншiк
1120-бап. Интеллектуалдық меншiкке құқықтар
1. Интеллектуалдық меншiкке құқықтарға осы құқықтарды қорғау сұралатын елдiң құқығы қолданылады.
2. Интеллектуалдық меншiкке құқық өз нысанасы болатын шарттар осы бөлiмнiң шарттық мiндеттемелер туралы ережелерiне сәйкес анықталатын құқықпен реттеледi.
Параграф 8. Мұрагерлiк құқық
1121-бап. Мұрагерлiк бойынша қатынастар
Мұрагерлік бойынша қатынастар, егер мұра қалдырушы өсиетінде өзi азаматы болып табылатын елдiң құқығын таңдамаған болса, осы Кодекстiң 1122
және 1123-баптарында өзгеше көзделмегендiктен, мұра қалдырушының соңғы тұрақты тұрғылықты жерi болған елдiң құқығы бойынша анықталады.
1122-бап. Адамдардың өсиет жасауға және оның күшiн жоюға қабілеттілігі, өсиеттің және оның күшін жою актiсiнiң нысаны
Адамның өсиет жасауға және оның күшiн жоюға қабiлеттiлiгi, сондай-ақ өсиеттiң және оның күшiн жою актiсiнiң нысаны, егер мұра қалдырушы өсиетiнде өзi азаматы болып табылатын елдiң құқығын таңдамаса, мұра қалдырушының акт жасаған кезде тұрақты тұрғылықты жерi болған елдiң құқығы бойынша анықталады. Алайда өсиет немесе оның күшiн жою, егер соңғысы акт жасалған жердiң талаптарын немесе Қазақстан Республикасы құқығының талаптарын қанағаттандырса, нысанды сақтамауы салдарынан жарамсыз деп таныла алмайды.
1123-бап. Қозғалмайтын мүлiктi және мемлекеттiк тiзiлiмге енгiзiлуге тиiстi мүлiктi мұраға қалдыру
Қозғалмайтын мүлікті мұраға қалдыру осы мүлік тұрған жердегi елдiң құқығы бойынша, ал Қазақстан Республикасында мемлекеттiк тiзiлiмге енгiзiлген мүлiк - Қазақстан Республикасының құқығы бойынша анықталады. Адамдардың өсиет жасауға немесе оның күшiн жоюға қабiлеттiлiгi, сондай-ақ соңғысының нысаны, егер аталған мүлiк өсиет етiп қалдырылса, нақ сол құқықпен анықталады.
Параграф 9. Қорғаншылық және қамқоршылық 1124-бап. Қорғаншылық және қамқоршылық
1. Кәмелетке толмағандарға, әрекетке қабiлетсiз немесе әрекетке қабiлетi шектеулi кәмелетке толған адамдарға қорғаншылық пен қамқоршылық белгiленедi және олардың күшi өзiне қатысты қорғаншылық пен қамқоршылық белгiленетiн немесе алып тасталатын адамның жеке заңы бойынша жойылады.
2. Қорғаншының (қамқоршының) қорғаншылықты қамқоршылықты) қабылдау мiндетi қорғаншы (қамқоршы) болып тағайындалатын адамның жеке заңы бойынша белгіленеді.
3. Қорғаншы (қамқоршы) мен қорғаншылықтағы (қамқоршылықтағы) адамның арасындағы құқықтық қатынастар мекемесі қорғаншыны (қамқоршыны ) тағайындаған елдің құқығы бойынша белгіленеді. Алайда қорғаншылықтағы (
қамқоршылықтағы) осы адам Қазақстан Республикасында тұратын болса, егер осы адам үшін бұл неғұрлым қолайлы болса, Қазақстан Республикасының құқығы қолданылады.
4. Қазақстан Республикасының шегінен тыс тұратын Қазақстан Республикасы азаматтарына белгіленген қорғаншылық (қамқоршылық), егер Қазақстан Республикасының тиісті консулдық мекемесінің қорғаншылық (қамқоршылық) белгілеуге қарсы немесе оны тануға қарсы заңға негізделген қарсылықтары болмаса, Қазақстан Республикасында жарамды деп танылады.
Қазақстан Республикасының Президенті
© 2012. Қазақстан Республикасы Әділет министрлігінің «Қазақстан Республикасының Заңнама және құқықтық ақпарат институты» ШЖҚ РМК
Гражданский кодекс Республики Казахстан
Архивная версия Кодекс Республики Казахстан от 27 декабря 1994 года № 268-XIII.
П р и м е ч а н и е И З П И ! В Кодекс предусмотрены изменения Законом РК от 03.07.2019 № 262-VI (
в в о д и т с я в д е й с т в и е с 0 1 . 0 1 . 2 0 2 0 ) . П р и м е ч а н и е Р Ц П И !
Введен в действие постановлением Верховного Совета Республики Казахстан от 27.12.1994 № 269-XIII ОГЛАВЛЕНИЕ
В тексте после слова "Раздел" цифры "I - III" заменены соответственно цифрами "1 - 3" в соответствии с Законом РК от 20.12.2004 № 13 (вводится в действие с 01.01.2005).
ОБЩАЯ ЧАСТЬ
Раздел 1. Общие положения
Глава 1. Регулирование гражданско-правовых отношений
Статья 1. Отношения, регулируемые гражданским законодательством
1. Гражданским законодательством регулируются товарно-денежные и иные основанные на равенстве участников имущественные отношения, а также связанные с имущественными личные неимущественные отношения. Участниками регулируемых гражданским законодательством отношений являются граждане, юридические лица, государство, а также административно-территориальные единицы.
2. Личные неимущественные отношения, не связанные с имущественными, регулируются гражданским законодательством, поскольку иное не предусмотрено законодательными актами либо не вытекает из существа личного неимущественного отношения.
3. К семейным, трудовым отношениям и отношениям по использованию природных ресурсов и охране окружающей среды, отвечающим признакам, указанным в пункте 1 настоящей статьи, гражданское законодательство применяется в случаях, когда эти отношения не регулируются соответственно
семейным, трудовым законодательством, законодательством об использовании природных ресурсов и охране окружающей среды.
4. К имущественным отношениям, основанным на административном или ином властном подчинении одной стороны другой, в том числе к налоговым и другим бюджетным отношениям, гражданское законодательство не применяется, за исключением случаев, предусмотренных законодательными актами.
Статья 2. Основные начала гражданского законодательства
1. Гражданское законодательство основывается на признании равенства участников регулируемых им отношений, неприкосновенности собственности, свободы договора, недопустимости произвольного вмешательства кого-либо в частные дела, необходимости беспрепятственного осуществления гражданских прав, обеспечения восстановления нарушенных прав, их судебной защиты.
2. Граждане и юридические лица приобретают и осуществляют свои гражданские права, а также отказываются, если иное не установлено законодательными актами, от прав своей волей и в своем интересе. Они свободны в установлении своих прав и обязанностей на основе договора и в определении любых его условий, не противоречащих законодательству.
3. Товары, услуги и деньги свободно перемещаются и обращаются на всей территории Республики Казахстан. Ограничения перемещения товаров и услуг вводятся в соответствии с законодательными актами, если это необходимо для обеспечения безопасности, защиты жизни и здоровья людей, охраны природы и культурных ценностей.
Сноска. Статья 2 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 3. Гражданское законодательство Республики Казахстан
1. Гражданское законодательство Республики Казахстан основывается на Конституции Республики Казахстан и состоит из настоящего Кодекса, принятых в соответствии с ним иных законов Республики Казахстан, указов Президента Республики Казахстан, имеющих силу закона, постановлений Парламента, постановлений Сената и Мажилиса Парламента (законодательных актов), а также указов Президента Республики Казахстан, постановлений Правительства Республики Казахстан, регулирующих отношения, указанные в пунктах 1, 2 статьи 1 настоящего Кодекса.
2. В случае противоречия норм гражданского права, содержащихся в актах законодательства Республики Казахстан, кроме тех, что указаны в пункте 3
статьи 1 настоящего Кодекса, положениям настоящего Кодекса применяются положения настоящего Кодекса. Нормы гражданского права, содержащиеся в законодательстве Республики Казахстан и противоречащие нормам настоящего Кодекса, могут применяться только после внесения в Кодекс соответствующих изменений.
Нормы гражданского законодательства Республики Казахстан не могут противоречить основным началам гражданского законодательства Республики Казахстан.
3. Отношения, связанные с созданием, реорганизацией, банкротством и ликвидацией банков и хлебоприемных предприятий, контролем за банковской деятельностью и ее аудиторской проверкой, контролем за деятельностью хлебоприемных предприятий, лицензированием отдельных видов банковских операций, реструктуризацией банков, наступлением последствий лишения лицензий банков, осуществлением операций со складскими свидетельствами хлебоприемных предприятий, регулируются настоящим Кодексом в части, не противоречащей законодательным актам, регулирующим банковскую деятельность и деятельность хлебоприемных предприятий.
Отношения между банками и их клиентами, а также отношения между клиентами через банки регулируются гражданским законодательством в порядке, установленном пунктом 2 настоящей статьи.
4. Гражданские отношения могут регулироваться обычаями, в том числе обычаями делового оборота, если они не противоречат гражданскому законодательству, действующему на территории Республики Казахстан.
5. Министерства и иные центральные исполнительные органы, местные представительные и исполнительные органы могут издавать акты, регулирующие гражданские отношения, в случаях и пределах, предусмотренных настоящим Кодексом и иными актами гражданского законодательства.
6. Установленные настоящим Кодексом и иными законодательными актами Республики Казахстан права граждан и юридических лиц не могут ограничиваться актами органов государственного управления и местных представительных и исполнительных органов. Такие акты являются недействительными с момента их принятия и не должны применяться.
7. Иностранные физические и юридические лица, а также лица без гражданства вправе приобретать такие же права и обязаны выполнять такие же обязанности, какие предусмотрены гражданским законодательством для граждан и юридических лиц Республики Казахстан, если законодательными актами не предусмотрено иное.
8. Если международным договором, ратифицированным Республикой Казахстан, установлены иные правила, чем те, которые содержатся в
гражданском законодательстве Республики Казахстан, применяются правила указанного договора. Международные договоры, ратифицированные Республикой Казахстан, к гражданским отношениям применяются непосредственно кроме случаев, когда из международного договора следует, что для его применения требуется издание закона.
Сноска. Статья 3 с изменениями, внесенными Указом Президента РК, имеющим силу Закона, № 2447 от 31.08.95; законами РК от 02.03.1998 № 211; от 15.01.2001 № 141; от 29.04.2009 № 154-IV (порядок введения в действие см. ст. 2 ); от 11.07.2009 № 185 (вводится в действие с 30.08.2009); от 25.03.2011 № 421- IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Статья 4. Действие гражданского законодательства во времени
1. Акты гражданского законодательства не имеют обратной силы и применяются к отношениям, возникшим после введения их в действие. Юридическая сила акта гражданского законодательства на отношения, возникшие до введения его в действие, распространяется в случаях, когда это прямо им предусмотрено.
2. По отношениям, возникшим до введения в действие акта гражданского законодательства, он применяется к правам и обязанностям, возникшим после введения его в действие. Отношения сторон по договору, заключенному до введения в действие акта гражданского законодательства, регулируются в соответствии со статьей 383 настоящего Кодекса.
Статья 5. Применение гражданского законодательства по аналогии
1. В случаях, когда предусмотренные пунктами 1 и 2 статьи 1 настоящего Кодекса отношения прямо не урегулированы законодательством или соглашением сторон и отсутствуют применимые к ним обычаи, к таким отношениям, поскольку это не противоречит их существу, применяются нормы гражданского законодательства, регулирующие сходные отношения (аналогия закона).
2. При невозможности использования в указанных случаях аналогии закона права и обязанности сторон определяются, исходя из общих начал и смысла гражданского законодательства и требований добросовестности, разумности и справедливости (аналогия права).
Статья 6. Толкование норм гражданского законодательства
1. Нормы гражданского законодательства должны толковаться в соответствии с буквальным значением их словесного выражения. При возможности различного понимания слов, применяемых в тексте законодательных норм, предпочтение отдается пониманию, отвечающему положениям Конституции Республики Казахстан и основным принципам гражданского законодательства, изложенным в настоящей главе, прежде всего - в ее статье 2.
2. При выяснении точного смысла нормы гражданского законодательства необходимо учитывать исторические условия, при которых она вводилась в действие, и ее истолкование в судебной практике, если это не нарушает требований, изложенных в пункте 1 настоящей статьи.
Статья 7. Основания возникновения, изменения и прекращения гражданских прав и обязанностей
Гражданские права и обязанности возникают, изменяются и прекращаются из оснований, предусмотренных законодательством Республики Казахстан, а также из действий граждан и юридических лиц, которые хотя и не предусмотрены им, но в силу общих начал и смысла гражданского законодательства порождают гражданские права и обязанности.
В соответствии с этим гражданские права и обязанности возникают, изменяются и прекращаются:
1) из договоров и иных сделок, предусмотренных законодательством Республики Казахстан, а также из сделок, хотя и не предусмотренных им, но не противоречащих законодательству Республики Казахстан;
2) из административных актов, влекущих в силу законодательства Республики Казахстан гражданско-правовые последствия;
3) из судебного решения, установившего гражданские права и обязанности; 4) в результате создания, уничтожения, приобретения или отчуждения
имущества по основаниям, не запрещенным законодательными актами Республики Казахстан, а также отказа от прав на имущество;
5) вследствие создания изобретений, промышленных образцов, произведений науки, литературы и искусства и иных результатов интеллектуальной деятельности;
6) вследствие причинения вреда другому лицу, а равно вследствие неосновательного приобретения или сбережения имущества за счет другого лица (неосновательного обогащения);
7) вследствие иных действий граждан и юридических лиц;
8) вследствие событий, с которыми законодательство Республики Казахстан связывает наступление гражданско-правовых последствий.
Сноска. Статья 7 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 8. Осуществление гражданских прав
1. Граждане и юридические лица по своему усмотрению распоряжаются принадлежащими им гражданскими правами, в том числе правом на их защиту.
2. Неосуществление прав, принадлежащих гражданам и юридическим лицам, не влечет прекращения этих прав, за исключением случаев, предусмотренных законодательными актами.
3. Осуществление гражданских прав не должно нарушать прав и охраняемых законодательством интересов других субъектов права, не должно причинять ущерба окружающей среде.
4. Граждане и юридические лица должны действовать при осуществлении принадлежащих им прав добросовестно, разумно и справедливо, соблюдая содержащиеся в законодательстве требования, нравственные принципы общества , а предприниматели также правила деловой этики.
Эта обязанность не может быть исключена или ограничена договором. Добросовестность, разумность и справедливость действий участников гражданских правоотношений предполагаются.
5. Не допускаются действия граждан и юридических лиц, направленные на причинение вреда другому лицу, злоупотребление правом в иных формах, а также на осуществление права в противоречии с его назначением.
6. Никто не вправе извлекать преимущество из своего недобросовестного поведения.
7. В случае несоблюдения требований, предусмотренных пунктами 3 – 6 настоящей статьи, суд может отказать лицу в защите принадлежащего ему права.
Сноска. Статья 8 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 9. Защита гражданских прав
1. Защита гражданских прав осуществляется судом, арбитражем путем: признания прав; восстановления положения, существовавшего до нарушения
права; пресечения действий, нарушающих право или создающих угрозу его нарушения; присуждения к исполнению обязанности в натуре; взыскания убытков, неустойки; признания оспоримой сделки недействительной и применения последствий ее недействительности, применения последствий недействительности ничтожной сделки; компенсации морального вреда; прекращения или изменения правоотношений; признания недействительным или не подлежащим применению не соответствующего законодательству Республики Казахстан акта органа государственного управления или местного представительного либо исполнительного органа; взыскания штрафа с государственного органа или должностного лица за воспрепятствование гражданину или юридическому лицу в приобретении или осуществлении права, а также иными способами, предусмотренными законодательными актами Республики Казахстан.
Юридические лица правом на возмещение морального вреда не обладают. 2. Обращение за защитой нарушенного права к органу власти или управления
не препятствует обращению в суд с иском о защите права, если законодательными актами не предусмотрено иное.
3. В случаях, специально предусмотренных законодательными актами, защита гражданских прав может осуществляться непосредственными фактическими или юридическими действиями лица, право которого нарушено ( самозащита).
4. Лицо, право которого нарушено, может требовать полного возмещения причиненных ему убытков, если законодательными актами или договором не предусмотрено иное.
Под убытками подразумеваются расходы, которые произведены или должны быть произведены лицом, право которого нарушено, утрата или повреждение его имущества (реальный ущерб), а также неполученные доходы, которые это лицо получило бы при обычных условиях оборота, если бы его право не было нарушено (упущенная выгода).
5. Убытки, причиненные гражданину или юридическому лицу в результате издания не соответствующего законодательству акта органа государственной власти, иного государственного органа, а также действиями (бездействием) должностных лиц этих органов, подлежат возмещению Республикой Казахстан или соответственно
административно-территориальной единицей. 6. Если наступление правовых последствий нарушения зависит от виновности
нарушителя, предполагается его виновность кроме случаев, когда законодательными актами предусмотрено иное.
Сноска. Статья 9 с изменениями, внесенными законами РК от 03.07.2013 № 125-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 08.04.2016 № 489-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 10. Защита прав предпринимателей и потребителей
1. Предпринимательством является самостоятельная, инициативная деятельность граждан, оралманов и юридических лиц, направленная на получение чистого дохода путем использования имущества, производства, продажи товаров, выполнения работ, оказания услуг, основанная на праве частной собственности (частное предпринимательство) либо на праве хозяйственного ведения или оперативного управления государственного предприятия (государственное предпринимательство). Предпринимательская деятельность осуществляется от имени, за риск и под имущественную ответственность предпринимателя.
2. Государство гарантирует свободу предпринимательской деятельности и обеспечивает ее защиту и поддержку.
3. Права предпринимателей, осуществляющих деятельность, не запрещенную законодательством, защищаются:
1) возможностью осуществления предпринимательской деятельности без получения каких-либо разрешений либо направления уведомлений, кроме разрешений и уведомлений, предусмотренных Законом Республики Казахстан "О разрешениях и уведомлениях";
2) максимально простым явочным порядком регистрации всех видов предпринимательства во всех сферах экономики в одном регистрирующем органе;
3) ограничением законодательными актами проверок предпринимательской деятельности, осуществляемых государственными органами;
4) принудительным прекращением предпринимательской деятельности только по решению суда, вынесенному по основанию, предусмотренному законодательным актом;
5) установлением законодательными актами перечня работ, видов товаров и услуг, которые запрещены для частного предпринимательства, запрещены или ограничены для экспорта или импорта;
6) привлечением государственных органов, должностных лиц, а также иных лиц и организаций к установленной законодательством имущественной ответственности перед предпринимателями за неправомерное воспрепятствование их деятельности;
6-1) запрещением исполнительным контрольным и надзирающим органам вступать в договорные отношения с субъектами предпринимательства на предмет выполнения обязанностей, являющихся функциями этих органов;
7) иными средствами, предусмотренными законодательством. 4. Установление разрешительного или уведомительного порядка
производится Законом Республики Казахстан "О разрешениях и уведомлениях" в зависимости от уровня опасности деятельности или действия (операции) в целях защиты жизни и здоровья людей, окружающей среды, собственности, обеспечения национальной безопасности и правопорядка.
Разрешительный порядок устанавливается в случаях, если предусмотренные законами Республики Казахстан требования к продукции, требования по обязательному подтверждению соответствия недостаточны для достижения целей государственного регулирования.
5. Коммерческая (предпринимательская) тайна охраняется законом. Порядок определения сведений, составляющих коммерческую тайну, средства ее защиты, а также перечень сведений, которые не должны входить в состав коммерческой тайны, устанавливаются законодательством.
6. Защита прав потребителей обеспечивается средствами, предусмотренными настоящим Кодексом или иными законодательными актами.
Каждый потребитель имеет, в частности, право на: - свободное заключение договоров на приобретение товаров, использование
работ и услуг; - надлежащее качество и безопасность товаров (работ, услуг); - полную и достоверную информацию о товарах (работах, услугах); - объединение в общественные организации потребителей. Сноска. Статья 10 с изменениями, внесенными Указом Президента РК,
имеющим силу Закона, от 27.01.1996 № 2835; законами РК от 11.07.1997 № 154; от 10.07.1998 № 283; от 12.01.2007 № 222 (вводится в действие по истечении 6 месяцев со дня его официального опубликования); от 25.03.2011 № 421-IV ( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 16.05.2014 № 203-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования); от 29.10.2015 № 376-V (вводится в действие с 01.01.2016).
Статья 11. Недопустимость злоупотребления свободой предпринимательства
1. Монополистическая и всякая иная деятельность, направленная на ограничение или устранение законной конкуренции, получение необоснованных преимуществ, ущемление прав и законных интересов потребителей, не допускается.
2. Не допускается, за исключением случаев, предусмотренных законодательными актами, использование предпринимателями гражданских прав в целях ограничения конкуренции, в том числе:
1) злоупотребление предпринимателями своим доминирующим положением на рынке, в частности, путем ограничения или прекращения производства либо изъятия из обращения товаров для создания их дефицита или повышения цен;
2) заключение и исполнение лицами, осуществляющими аналогичную предпринимательскую деятельность, соглашений о ценах, разделе рынков, устранении других предпринимателей и об иных условиях, существенно ограничивающих конкуренцию;
3) совершение недобросовестных действий, направленных на ущемление законных интересов лица, ведущего аналогичную предпринимательскую деятельность, и потребителей (недобросовестная конкуренция), в частности, путем введения потребителей в заблуждение относительно изготовителя, назначения, способа и места изготовления, качества и иных свойств товара другого предпринимателя, путем некорректного сравнения товаров в рекламной и иной информации, копирования внешнего оформления чужого товара и иными способами.
Меры по борьбе с недобросовестной конкуренцией устанавливаются законодательными актами.
Глава 2. Субъекты гражданских прав Параграф 1. Граждане Республики Казахстан и другие физические лица
Статья 12. Понятие физического лица
Под физическими лицами понимаются граждане Республики Казахстан, граждане других государств, а также лица без гражданства. Положения настоящей главы применяются ко всем физическим лицам, если иное не установлено настоящим Кодексом.
Статья 13. Правоспособность граждан
1. Способность иметь гражданские права и нести обязанности (гражданская правоспособность) признается в равной мере за всеми гражданами.
2. Правоспособность гражданина возникает в момент его рождения и прекращается смертью.
Статья 14. Основное содержание правоспособности гражданина
Гражданин может иметь на праве собственности имущество, в том числе иностранную валюту, как в пределах Республики Казахстан, так и за ее границами; наследовать и завещать имущество; свободно передвигаться по территории республики и выбирать место жительства; свободно покидать пределы республики и возвращаться на ее территорию; заниматься любой не запрещенной законодательными актами деятельностью; создавать юридические лица самостоятельно или с другими гражданами и юридическими лицами; совершать любые не запрещенные законодательными актами сделки и участвовать в обязательствах; иметь право интеллектуальной собственности на изобретения, произведения науки, литературы и искусства, иные результаты интеллектуальной деятельности; требовать возмещения материального и морального вреда; иметь другие имущественные и личные неимущественные права.
Сноска. Статья 14 с изменением, внесенным Законом РК от 27.02.2017 № 49- VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 15. Имя гражданина
1. Гражданин приобретает и осуществляет права и обязанности под своим именем, которое включает фамилию и имя, а также по желанию - отчество.
2. Законодательством могут быть предусмотрены случаи анонимного приобретения гражданами прав и осуществления обязанностей или использования псевдонима (вымышленного имени).
3. Имя, полученное гражданином при рождении, а также изменение имени подлежат регистрации в порядке, установленном законодательством о регистрации актов гражданского состояния.
4. Гражданин вправе переменить свое имя в порядке, установленном законодательными актами. Перемена имени не является основанием для прекращения или изменения его прав и обязанностей, приобретенных под прежним именем, анонимно или под псевдонимом.
5. Гражданин обязан принимать необходимые меры для извещения своих должников и кредиторов о перемене его имени и несет риск последствий, вызванных отсутствием у этих лиц сведений о перемене его имени.
6. Гражданин, переменивший имя, вправе требовать внесения соответствующих изменений в документы, оформленные на его прежнее имя.
7. Приобретение прав и обязанностей под именем другого лица не допускается.
8. Гражданин вправе требовать запрещения использования его имени, когда это было сделано без его согласия, кроме случаев, предусмотренных законами Республики Казахстан.
9. Вред, причиненный гражданину в результате неправомерного использования его имени, подлежит возмещению в соответствии с положениями настоящего Кодекса.
При искажении либо использовании имени гражданина способами или в форме, затрагивающими его честь, достоинство и деловую репутацию, применяются правила, предусмотренные статьей 143 настоящего Кодекса.
Cноска. Статья 15 с изменениями, внесенными законами РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 21.05.2013 № 95-V (вводится в действие по истечении шести месяцев после его первого официального опубликования).
Статья 16. Место жительства и юридический адрес гражданина
1. Местом жительства признается тот населенный пункт, где гражданин постоянно или преимущественно проживает.
2. Местом жительства лиц, не достигших четырнадцати лет (малолетних), или граждан, находящихся под опекой, признается место жительства их законных представителей.
3. Гражданин имеет юридический адрес, используемый в отношениях с физическими и юридическими лицами, а также государством.
Юридическим адресом гражданина признается место его регистрации. Порядок регистрации граждан определяется Правительством Республики
Казахстан. 4. Гражданин вправе требовать запрещения использования информации о его
месте жительства или юридическом адресе, когда это было сделано без его согласия, кроме случаев, предусмотренных законами Республики Казахстан.
Cноска. Статья 16 с изменениями, внесенными законами РК от 12.01.2007 № 224 (порядок введения в действие см. ст. 2); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого
официального опубликования); от 21.05.2013 № 95-V (вводится в действие по истечении шести месяцев после его первого официального опубликования).
Статья 17. Дееспособность граждан
1. Способность гражданина своими действиями приобретать и осуществлять гражданские права, создавать для себя гражданские обязанности и исполнять их ( гражданская дееспособность) возникает в полном объеме с наступлением совершеннолетия, то есть по достижении восемнадцатилетнего возраста.
2. В случае, когда законодательными актами допускается вступление в брак до достижения восемнадцати лет, гражданин, не достигший восемнадцатилетнего возраста, приобретает дееспособность в полном объеме со времени вступления в брак.
3. Все граждане имеют равную дееспособность, если иное не установлено законодательными актами.
Статья 18. Недопустимость лишения и ограничения правоспособности и дееспособности
1. Никто не может быть ограничен в правоспособности и дееспособности иначе, как в случаях и порядке, предусмотренных законодательными актами.
2. Несоблюдение установленных законодательными актами условий и порядка ограничения правоспособности и дееспособности граждан или их права заниматься предпринимательской либо иной деятельностью влечет недействительность акта государственного или иного органа, установившего соответствующее ограничение.
3. Полный или частичный отказ гражданина от правоспособности или дееспособности и другие сделки, направленные на ограничение правоспособности или дееспособности, ничтожны, за исключением случаев, когда такие сделки допускаются законодательными актами.
Сноска. Статья 18 с изменением, внесенным Законом РК от 27.02.2017 № 49- VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 19. Предпринимательская деятельность граждан
1. Граждане вправе заниматься предпринимательской деятельностью без образования юридического лица, за исключением случаев, предусмотренных настоящим Кодексом и иными законодательными актами.
2. Государственная регистрация индивидуальных предпринимателей заключается в постановке на учет в качестве индивидуального предпринимателя.
3. К предпринимательской деятельности граждан, осуществляемой без образования юридического лица, соответственно применяются правила настоящего Кодекса, которые регулируют деятельность юридических лиц, являющихся коммерческими организациями, если иное не вытекает из законодательства или существа правоотношения.
4. Физические лица подлежат государственной регистрации в качестве индивидуального предпринимателя в соответствии с Предпринимательским кодексом Республики Казахстан.
4-1. Исключен Законом РК от 25.12.2017 № 122-VI (вводится в действие с 01.01.2018).
5. Если индивидуальный предприниматель осуществляет деятельность, подлежащую лицензированию, он обязан иметь лицензию на право осуществления такой деятельности.
Лицензия выдается в порядке, установленном законодательством Республики Казахстан о разрешениях и уведомлениях.
Правительство Республики Казахстан вправе устанавливать упрощенный порядок выдачи лицензий индивидуальным предпринимателям.
Сноска. Статья 19 с изменениями, внесенными законами РК от 02.07.1997 года № 144; от 24.12.2001 № 276 (вводится в действие с 1 января 2002 г.); от 10.12.2008 № 101-IV (вводится в действие с 01.01.2009); от 30.06.2010 № 297-IV ( вводится в действие с 01.01.2013); от 26.12.2012 № 61-V (вводится в действие с 01.01.2013); от 16.05.2014 № 203-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования); от 25.12.2017 № 122-VI (вводится в действие с 01.01.2018).
Статья 20. Имущественная ответственность гражданина
1. Гражданин отвечает по своим обязательствам всем принадлежащим ему имуществом, за исключением имущества, на которое в соответствии с законодательными актами не может быть обращено взыскание.
2. Исключен Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Сноска. Статья 20 с изменением, внесенным Законом РК от 27.02.2017 № 49- VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 21. Банкротство индивидуального предпринимателя
1. Несостоятельность индивидуального предпринимателя (статья 52 настоящего Кодекса) является основанием для признания его банкротом.
2. Банкротство индивидуального предпринимателя признается в добровольном или принудительном порядке по правилам, установленным законодательством Республики Казахстан о реабилитации и банкротстве. С момента признания индивидуального предпринимателя банкротом утрачивает силу регистрация его в качестве индивидуального предпринимателя.
3. При применении к индивидуальному предпринимателю процедур банкротства его кредиторы по обязательствам, не связанным с предпринимательской деятельностью, также вправе предъявить свои требования, если срок исполнения по таким обязательствам наступил. Требования указанных кредиторов, не заявленные ими в таком порядке, а также требования, которые не были удовлетворены в полном объеме из имущественной массы, сохраняют силу и могут быть предъявлены к взысканию после завершения процедур банкротства должнику как к физическому лицу. Размер этих требований уменьшается на сумму полученного удовлетворения в процессе банкротства должника.
Сноска. Статья 21 в редакции Закона РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 22. Дееспособность несовершеннолетних в возрасте от четырнадцати до восемнадцати лет
1. Несовершеннолетние в возрасте от четырнадцати до восемнадцати лет совершают сделки с согласия их законных представителей. Форма такого согласия должна соответствовать форме, которая установлена законодательством для сделки, совершаемой несовершеннолетним.
2. Несовершеннолетние в возрасте от четырнадцати до восемнадцати лет вправе самостоятельно распоряжаться своим заработком, стипендией, иными доходами и созданными ими объектами права интеллектуальной собственности, а также совершать мелкие бытовые сделки.
3. При наличии достаточных оснований суд может ограничить или лишить несовершеннолетнего права самостоятельного распоряжения своим заработком, стипендией, иными доходами и созданными им объектами права интеллектуальной собственности.
4. Несовершеннолетние в возрасте от четырнадцати до восемнадцати лет самостоятельно несут ответственность по сделкам, совершенным ими в
соответствии с правилами настоящей статьи, и несут ответственность за вред, причиненный их действиями, по правилам настоящего Кодекса.
Сноска. Статья 22 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 31.10.2015 № 378-V (вводится в действие с 01.01.2016).
Статья 22-1. Объявление несовершеннолетнего полностью дееспособным (эмансипация)
1. Несовершеннолетний, достигший шестнадцати лет, может быть объявлен полностью дееспособным, если он работает по трудовому договору или с согласия его законных представителей занимается предпринимательской деятельностью.
2. Объявление несовершеннолетнего полностью дееспособным (эмансипация) производится по решению органа опеки и попечительства с согласия его законных представителей либо при отсутствии такого согласия по решению суда.
3. Эмансипированный несовершеннолетний обладает гражданскими правами и несет обязанности (в том числе по обязательствам, возникшим вследствие причинения им вреда), за исключением тех прав и обязанностей, для приобретения которых законодательными актами Республики Казахстан установлен возрастной ценз.
Законные представители не несут ответственности по обязательствам эмансипированного несовершеннолетнего.
Сноска. Кодекс дополнен статьей 22-1 в соответствии с Законом РК от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 23. Дееспособность несовершеннолетних в возрасте до четырнадцати лет (малолетних)
Сноска. Заголовок статьи 23 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
1. За несовершеннолетних, не достигших четырнадцати лет (малолетних), сделки совершают от их имени законные представители, если иное не предусмотрено законодательными актами.
2. Несовершеннолетние в возрасте до четырнадцати лет (малолетние) вправе самостоятельно совершать лишь соответствующие их возрасту мелкие бытовые сделки, исполняемые при самом их совершении.
Сноска. Статья 23 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 24. Согласие органов опеки и попечительства на совершение сделок несовершеннолетним и за несовершеннолетнего
Законодательными актами могут быть установлены случаи, когда на совершение сделки несовершеннолетним и за несовершеннолетнего требуется предварительное согласие органа опеки и попечительства.
Статья 25. Право несовершеннолетних на внесение вкладов в банки и распоряжение вкладами
1. Несовершеннолетние вправе вносить вклады в банки и самостоятельно распоряжаться внесенными ими вкладами.
2. Вкладами, внесенными кем-либо на имя несовершеннолетних, не достигших четырнадцати лет (малолетних), распоряжаются их родители или иные законные представители, а несовершеннолетние, достигшие четырнадцати лет, самостоятельно распоряжаются вкладами, внесенными кем-либо на их имя.
Сноска. Статья 25 с изменением, внесенным Законом РК от 25.03.2011 № 421 -IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 26. Признание гражданина недееспособным
1. Гражданин, который вследствие психического заболевания или слабоумия не может понимать значения своих действий или руководить ими, может быть признан судом недееспособным, в связи с чем над ним устанавливается опека.
2. От имени гражданина, признанного недееспособным, сделки совершает его опекун.
3. В случае выздоровления или значительного улучшения здоровья недееспособного, суд признает его дееспособным, после чего с него снимается опека.
Статья 27. Ограничение дееспособности гражданина
1. Гражданин, который вследствие злоупотребления спиртными напитками или наркотическими веществами ставит свою семью в тяжелое материальное положение, может быть ограничен судом в дееспособности в порядке, установленном Гражданским процессуальным кодексом Республики Казахстан. Над ним устанавливается попечительство. Он вправе самостоятельно совершать мелкие бытовые сделки. Совершать другие сделки, а также получать заработок, пенсию и иные доходы и распоряжаться ими он может лишь с согласия попечителя.
2. При прекращении гражданином злоупотребления спиртными напитками или наркотическими веществами суд отменяет ограничение его дееспособности. На основании решения суда отменяется установленное над гражданином попечительство.
Статья 28. Признание гражданина безвестно отсутствующим
1. Гражданин может быть по заявлению заинтересованных лиц, признан судом безвестно отсутствующим, если в течение одного года в месте его жительства нет сведений о нем.
2. При невозможности установить день получения последних сведений об отсутствующем началом безвестного отсутствия считается первое число месяца, следующего за тем, в котором были получены последние сведения об отсутствующем, а при невозможности установить этот месяц - первое января следующего года.
Статья 29. Охрана имущества безвестно отсутствующего
1. Над имуществом лица, признанного безвестно отсутствующим, на основании решения суда устанавливается опека. Из этого имущества выдается содержание лицам, которых безвестно отсутствующий был обязан содержать, и погашается задолженность по налогам и другим обязательствам безвестно отсутствующего.
2. По заявлению заинтересованных лиц орган опеки и попечительства может назначить опекуна для охраны и управления имуществом и до истечения одного года со дня получения последних сведений о местопребывании отсутствующего лица.
Статья 30. Отмена решения о признании безвестно отсутствующим
В случае явки или обнаружения местопребывания лица, признанного безвестно отсутствующим, суд отменяет решение о признании его безвестно отсутствующим и об установлении опеки над его имуществом.
Статья 31. Объявление гражданина умершим
1. Гражданин может быть, по заявлению заинтересованных лиц, объявлен судом умершим, если в месте его жительства нет сведений о нем в течение трех лет, а если он пропал без вести при обстоятельствах, угрожавших смертью или дающих основание предполагать его гибель от несчастного случая, в течение шести месяцев.
2. Военнослужащий или иное лицо, пропавшее без вести в связи с военными действиями, может быть объявлено умершим не ранее, чем по истечении двух лет со дня окончания военных действий.
3. Днем смерти лица, объявленного умершим, считается день вступления в законную силу решения суда об объявлении его умершим. В случаях объявления умершим лица, пропавшего без вести при обстоятельствах, угрожавших смертью или дающих основание предполагать его гибель от несчастного случая, суд может признать днем смерти этого лица день его предполагаемой гибели.
4. На основании вступившего в законную силу решения суда об объявлении лица умершим, производится запись о его смерти в книгах записей актов гражданского состояния. Последствия записи таковы же, как и записи о фактической смерти.
Статья 32. Последствия явки лица, объявленного умершим
1. В случае явки или обнаружения места пребывания лица, объявленного умершим, соответствующее решение отменяется судом.
2. Независимо от времени своей явки гражданин может потребовать от любого лица возврата сохранившегося имущества, которое безвозмездно перешло к этому лицу после объявления гражданина умершим.
3. Если имущество лица, объявленного умершим, было отчуждено его правопреемником третьим лицам, которые к моменту явки лица не уплатили полностью покупной цены, то к явившемуся переходит право требования неуплаченной суммы.
4. Лица, к которым имущество гражданина, объявленного умершим, перешло по возмездным сделкам, обязаны возвратить ему это имущество, а при отсутствии у них имущества - возместить его стоимость, если будет доказано, что в момент приобретения имущества они знали, что гражданин, объявленный умершим, находится в живых.
5. Отчуждатель имущества, знавший в момент отчуждения, что лицо, объявленное умершим, находится в живых, несет солидарную с приобретателем обязанность возврата или возмещения стоимости имущества.
6. Если имущество лица, объявленного умершим, перешло по праву наследования к государству и было реализовано, то после отмены решения об объявлении лица умершим ему возвращается сумма, вырученная от реализации имущества с учетом его рыночной стоимости на день выплаты.
Параграф 2. Юридические лица
Сноска. Части III, IV, V считать частями V, VI, VII - Законом РК от 10 июля 1998 г. N 282.
I. Общие положения
Статья 33. Понятие юридического лица
1. Юридическим лицом признается организация, которая имеет на праве собственности, хозяйственного ведения или оперативного управления обособленное имущество и отвечает этим имуществом по своим обязательствам, может от своего имени приобретать и осуществлять имущественные и личные неимущественные права и обязанности, быть истцом и ответчиком в суде.
Юридическое лицо должно иметь самостоятельный баланс или смету. 2. Юридическое лицо имеет печать со своим наименованием. Данное
требование не распространяется на юридические лица, которые являются субъектами частного предпринимательства, за исключением случаев, предусмотренных настоящим Кодексом и законами Республики Казахстан.
Сноска. Статья 33 с изменением, внесенным Законом РК от 29.12.2014 № 269 -V (вводится в действие с 01.01.2015).
Статья 34. Виды и формы юридических лиц
1. Юридическим лицом может быть организация, преследующая извлечение дохода в качестве основной цели своей деятельности (коммерческая организация ) либо не имеющая извлечение дохода в качестве такой цели и не распределяющая полученный чистый доход между участниками ( некоммерческая организация).
2. Юридическое лицо, являющееся коммерческой организацией, может быть создано только в форме государственного предприятия, хозяйственного товарищества, акционерного общества, производственного кооператива.
3. Юридическое лицо, являющееся некоммерческой организацией, может быть создано в форме учреждения, общественного объединения, акционерного общества, потребительского кооператива, фонда, религиозного объединения и в иной форме, предусмотренной законодательными актами.
Некоммерческая организация может заниматься предпринимательской деятельностью лишь постольку, поскольку это соответствует ее уставным целям.
3-1. Юридическое лицо, являющееся некоммерческой организацией и содержащееся только за счет государственного бюджета, может быть создано исключительно в форме государственного учреждения.
4. Юридические лица могут создавать объединения (статья 110 настоящего Кодекса).
5. Юридическое лицо действует на основе настоящего Кодекса, Закона о каждой из форм юридических лиц, иных законодательных актов и учредительных документов.
Сноска. Статья 34 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 10.07.1998 № 282; от 16.12.1998 № 320; от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 27.04.2012 № 15-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 35. Правоспособность юридического лица
1. Юридическое лицо может иметь гражданские права и нести связанные с его деятельностью обязанности в соответствии с настоящим Кодексом. Коммерческие организации, за исключением государственных предприятий, могут иметь гражданские права и нести гражданские обязанности, необходимые для осуществления любых, не запрещенных законодательными актами или учредительными документами видов деятельности.
В случаях, предусмотренных законодательными актами, для юридических лиц, осуществляющих определенные виды деятельности, может быть исключена или ограничена возможность заниматься другой деятельностью.
Отдельными видами деятельности, перечень которых определяется законодательными актами, юридическое лицо может заниматься только на основании лицензии.
2. Правоспособность юридического лица возникает в момент его создания и прекращается в момент завершения его ликвидации. Правоспособность юридического лица в сфере деятельности, на занятие которой необходимо получение разрешения, возникает с момента получения такого разрешения и прекращается в момент его изъятия, истечения срока действия или признания
недействительным в установленном законодательными актами Республики Казахстан порядке.
3. Правоспособность юридического лица, являющегося некоммерческой организацией и содержащегося только за счет государственного бюджета ( государственное учреждение), определяется настоящим Кодексом и иными законодательными актами Республики Казахстан.
Сноска. Статья 35 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 16.12.1998 № 320; от 16.05.2014 № 203-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования).
Статья 36. Права учредителей (участников) на имущество созданных ими юридических лиц
1. В отношении обособленного имущества юридического лица его учредители (участники) могут иметь обязательственные или вещные права.
2. К юридическим лицам, на имущество которых их участники (учредители) сохраняют обязательственные права, относятся хозяйственные товарищества, акционерные общества и кооперативы.
3. К юридическим лицам, на имущество которых их учредители сохраняют право собственности или иное вещное право, относятся организации, обладающие имуществом на праве хозяйственного ведения или праве оперативного управления.
4. К юридическим лицам, на имущество которых их учредители (участники) не сохраняют имущественных прав, относятся общественные объединения, фонды и религиозные объединения.
5. Права учредителей (участников) на имущество созданных ими юридических лиц иных организационно-правовых форм определяются законодательными актами Республики Казахстан.
Сноска. Статья 36 с изменениями, внесенными законами РК от 10.07.1998 № 282; от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 27.04.2012 № 15-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 37. Органы юридического лица
1. Юридическое лицо приобретает гражданские права и принимает на себя обязанности только через свои органы, действующие в соответствии с законодательными актами и учредительными документами.
2. Виды, порядок назначения или избрания органов юридического лица и их полномочия определяются законодательными актами и учредительными документами.
Сноска. Статья 37 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 38. Наименование юридического лица
1. Юридическое лицо имеет свое наименование, позволяющее отличить его от других юридических лиц.
Наименование юридического лица включает в себя его название и указание на организационно-правовую форму. Оно может включать в себя дополнительную информацию, предусмотренную законодательством.
Наименование юридического лица указывается в его учредительных документах.
В наименовании юридического лица не допускается использование названий, противоречащих требованиям законодательства или нормам общественной морали; собственных имен лиц, если они не совпадают с именем участников либо если участники не получили разрешения этих лиц (их наследников) на использование собственного имени.
2. Под определенным наименованием юридическое лицо вносится в Национальный реестр бизнес-идентификационных номеров.
Наименование юридического лица не должно полностью или в существенной части дублировать наименование юридических лиц, зарегистрированных в Республике Казахстан.
Наименование юридического лица, являющегося коммерческой организацией , после регистрации юридического лица является его фирменным наименованием .
Юридическое лицо имеет исключительное право использования фирменного наименования. Лицо, неправомерно использующее чужое фирменное наименование, по требованию обладателя права на фирменное наименование обязано прекратить использование такого наименования и возместить причиненные убытки.
Права и обязанности юридического лица, связанные с использованием фирменного наименования, определяются законодательством.
3. (исключен - № 276 от 24.12.2001 г.) 4. Запрещается использование в фирменных наименованиях, знаках
обслуживания, товарных знаках юридических лиц, не являющихся
государственными органами, указаний на официальные названия государственных органов Республики Казахстан, установленные законодательными актами, актами Президента и Правительства Республики Казахстан.
Сноска. Статья 38 с изменениями, внесенными законами РК от 15.07.1996 № 30; от 02.03.1998 № 211; от 16.07.1999 № 440; от 24.12.2001 № 276 (вводится в действие с 01.01.2002); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 39. Место нахождения юридического лица
1. Местом нахождения юридического лица признается место нахождения его постоянно действующего органа.
2. Место нахождения юридического лица указывается в его учредительных документах с записью полного почтового адреса.
3. В отношениях с третьими лицами юридическое лицо не вправе ссылаться на несоответствие фактического адреса адресу, внесенному в Национальный реестр бизнес-идентификационных номеров. При этом третьи лица вправе направлять юридическому лицу почтовую и иную корреспонденцию как по адресу, внесенному в Национальный реестр бизнес-идентификационных номеров , так и по фактическому адресу.
Сноска. Статья 39 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 40. Учредители юридического лица
1. Юридическое лицо может учреждаться одним или несколькими учредителями.
2. Учредителями юридического лица могут быть собственники имущества либо уполномоченные ими органы или лица, а в случаях, специально предусмотренных законодательными актами, - иные юридические лица. При этом юридические лица, которые владеют имуществом на праве хозяйственного ведения или оперативного управления, могут быть учредителями других юридических лиц с согласия собственника или уполномоченного им органа, если иное не предусмотрено законами Республики Казахстан.
3. Учредители юридического лица не могут иметь какие-либо преимущества перед другими участниками данного юридического лица, не являющимися его
учредителями, за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
Сноска. Статья 40 с изменениями, внесенными законами РК от 16.05.2003 N 416; от 18.02.2011 № 408-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 41. Учредительные документы юридического лица
1. Если иное не предусмотрено настоящим Кодексом и законодательными актами Республики Казахстан, юридическое лицо осуществляет свою деятельность на основании:
1) устава и учредительного договора; 2) устава;
3) устава и оформленного в письменном виде решения об учреждении юридического лица (решения единственного учредителя) в случае, если юридическое лицо учреждено одним лицом.
В случаях, предусмотренных законодательными актами Республики Казахстан, юридическое лицо, являющееся некоммерческой организацией, может действовать на основании общего положения об организациях данного вида.
Юридическое лицо, являющееся субъектом малого, среднего и крупного предпринимательства, может осуществлять свою деятельность на основании типового устава, содержание которого определяется Министерством юстиции Республики Казахстан.
2. Учредительный договор юридического лица заключается, а устав утверждается его учредителями. Учредительный договор не заключается, если коммерческая организация учреждается одним лицом.
3. В учредительных документах некоммерческой организации и государственного предприятия должны быть определены предмет и цели деятельности юридического лица.
Учредительными документами хозяйственного товарищества, акционерного общества и производственного кооператива могут быть предусмотрены предмет и цели их деятельности.
4. В учредительном договоре стороны (учредители) обязуются создать юридическое лицо, определяют порядок совместной деятельности по его созданию, условия передачи в его собственность (оперативное управление) своего имущества и участия в его деятельности. Договором определяются также условия и порядок распределения между учредителями чистого дохода, управления деятельностью юридического лица, выхода учредителей из его
состава и утверждается его устав, если иное не предусмотрено настоящим Кодексом или законодательными актами об отдельных видах юридических лиц.
В учредительный договор по согласию учредителей могут быть включены и другие условия.
4-1. Решение единственного учредителя должно содержать условия передачи в собственность (хозяйственное ведение, оперативное управление) имущества и иные решения, не противоречащие законодательству Республики Казахстан.
Решение единственного учредителя-юридического лица принимается его органами, обладающими правом на принятие таких решений в соответствии с законодательством Республики Казахстан и уставом данного юридического лица.
5. В уставе юридического лица определяются: его наименование, местонахождение, порядок формирования и компетенция его органов, условия реорганизации и ликвидации.
Если юридическое лицо учреждается одним лицом, то в его уставе определяются также порядок образования имущества и распределения доходов.
В уставе могут содержаться и другие положения, не противоречащие законодательству Республики Казахстан.
6. В случае противоречий между учредительным договором и уставом одного юридического лица должны применяться условия:
1) учредительного договора, если они относятся к взаимоотношениям учредителей;
2) устава, если их применение может иметь значение для отношений юридического лица с третьими лицами.
7. Все заинтересованные лица вправе ознакомиться с уставом юридического лица.
Сноска. Статья 41 с изменениями, внесенными законами РК от 15.07.1996 N 30; от 19.06.1997 N 132; от 11.07.1997 N 154; от 02.03.1998 N 211; от 22.04.1998 N 221; от 10.07.1998 N 282; от 16.05.2003 N 416; от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 04.07.2008 N 54-IV ( порядок введения в действие см. ст. 2); от 08.12.2009 № 225-IV (порядок введения в действие см. ст. 2); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 42. Государственная регистрация и перерегистрация юридических лиц
1. Юридическое лицо, являющееся некоммерческой организацией, подлежит государственной регистрации в органах юстиции.
Юридическое лицо, являющееся коммерческой организацией, подлежит государственной регистрации в Государственной корпорации "Правительство для граждан", за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
Порядок государственной регистрации определяется законодательством Республики Казахстан.
2. Данные государственной регистрации, в том числе наименование юридических лиц, а для коммерческих организаций - фирменное наименование, включаются в Национальный реестр бизнес-идентификационных номеров.
3. Юридическое лицо считается созданным с момента его государственной регистрации.
4. Филиалы и представительства регистрируются в установленном законодательными актами порядке.
Филиалы и представительства подлежат перерегистрации в случае изменения наименования.
5. Нарушение установленного законом порядка образования юридического лица или несоответствие его учредительных документов закону влекут отказ в государственной регистрации юридического лица. Отказ в регистрации по мотивам нецелесообразности образования юридического лица не допускается.
Отказ в государственной регистрации, а также уклонение от такой регистрации могут быть обжалованы в суд.
6. Юридическое лицо подлежит перерегистрации в случаях: 1) уменьшения размера уставного капитала; 2) изменения наименования;
3) изменения состава участников в хозяйственных товариществах (за исключением хозяйственных товариществ, в которых ведение реестра участников хозяйственного товарищества осуществляется профессиональным участником рынка ценных бумаг, осуществляющим деятельность по ведению системы реестров держателей ценных бумаг).
Изменения, внесенные в учредительные документы по указанным основаниям без перерегистрации юридического лица, являются недействительными.
Сноска. Статья 42 с изменениями, внесенными законами РК от 15.07.1996 N 30; от 11.07.1997 N 154; от 02.03.1998 N 211; от 10.07.1998 N 282; от 16.05.2003 N 416; от 08.07.2005 N 72 (порядок введения в действие см. ст.2); от 05.06.2006 N 146 (порядок введения в действие см. ст.2); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого
официального опубликования); от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 02.04.2019 № 241-VI (вводится в действие с 01.07.2019).
Статья 43. Филиалы, представительства и иные обособленные структурные подразделения юридического лица
1. Филиалом является обособленное подразделение юридического лица, расположенное вне места его нахождения и осуществляющее все или часть его функций, в том числе функции представительства.
2. Представительством является обособленное подразделение юридического лица, расположенное вне места его нахождения и осуществляющее защиту и представительство интересов юридического лица, совершающее от его имени сделки и иные правовые действия, за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
3. Филиалы и представительства не являются юридическими лицами. Они наделяются имуществом создавшим их юридическим лицом и действуют на основании утвержденных им положений.
4. Юридические лица вправе создавать иные обособленные структурные подразделения, за исключением случаев, установленных законами.
Иным обособленным структурным подразделением юридического лица признается территориально обособленное подразделение, по месту нахождения которого оборудованы стационарные рабочие места, выполняющие часть функций юридического лица. Рабочее место считается стационарным, если оно создано на срок более одного месяца.
Иное обособленное структурное подразделение государственного учреждения создается в случаях, прямо предусмотренных законами.
5. Руководители структурных подразделений (филиалов и представительств) общественных объединений избираются в порядке, предусмотренном уставом общественного объединения и положением о его филиале или представительстве .
Руководители структурных подразделений (филиалов и представительств) религиозных объединений избираются либо назначаются в порядке, предусмотренном уставом религиозного объединения и положением о его филиале или представительстве.
Руководители филиалов и представительств иных форм юридических лиц назначаются уполномоченным органом юридического лица и действуют на основании его доверенности.
Сноска. Статья 43 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 44. Ответственность юридического лица
1. Юридические лица, кроме специальных финансовых компаний, государственных исламских специальных финансовых компаний, финансируемых учредителем учреждений и казенных предприятий, отвечают по своим обязательствам всем принадлежащим им имуществом.
Учреждение отвечает по своим обязательствам находящимися в его распоряжении деньгами. При их недостаточности ответственность по его обязательствам несет его учредитель.
Казенное предприятие отвечает по своим обязательствам находящимися в его распоряжении деньгами.
При недостаточности у казенного предприятия денег субсидиарную ответственность по его обязательствам несет Республика Казахстан или административно-территориальная единица средствами соответствующего бюджета.
Специальная финансовая компания отвечает по своим обязательствам в порядке, предусмотренном законодательством Республики Казахстан о проектном финансировании и секьюритизации.
Государственная исламская специальная финансовая компания отвечает по своим обязательствам находящимися в ее распоряжении деньгами.
2. Учредитель (участник) юридического лица или собственник его имущества не отвечает по его обязательствам, а юридическое лицо не отвечает по обязательствам учредителя (участника) юридического лица или собственника его имущества, за исключением случаев, предусмотренных настоящим Кодексом, иными законодательными актами либо учредительными документами юридического лица.
3. Если преднамеренное банкротство юридического лица вызвано действиями (бездействием) его учредителя (участника) и (или) должностного лица, то при недостаточности средств у юридического лица учредитель (участник) и (или) должностное лицо несут перед кредиторами субсидиарную ответственность.
Если ложное банкротство юридического лица вызвано действиями ( бездействием) его учредителя (участника) и (или) должностного лица, то при
недостаточности средств у юридического лица учредитель (участник) и (или) должностное лицо несут субсидиарную ответственность за убытки, причиненные кредитору в результате ложного банкротства.
4. Юридическое лицо несет ответственность перед третьими лицами по обязательствам, принятым органом юридического лица с превышением его полномочий, установленных учредительными документами, кроме случаев, предусмотренных пунктом 11 статьи 159 настоящего Кодекса.
Сноска. Статья 44 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 16.12.1998 № 320; от 04.11.1999 № 472; от 20.05.2003 N 417; от 20.02.2006 № 127 (порядок введения в действие см. ст.2); от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 12.01.2012 № 539-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.11.2015 № 422-V (вводится в действие с 01.01.2016); от 27.02.2017 № 49-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 45. Реорганизация юридического лица
1. Реорганизация юридического лица (слияние, присоединение, разделение, выделение, преобразование) производится по решению собственника его имущества или уполномоченного собственником органа, учредителей ( участников), а также органа, уполномоченного учредительными документами юридического лица, либо по решению судебных органов в случаях, предусмотренных законодательными актами Республики Казахстан. Законодательством Республики Казахстан могут быть предусмотрены и другие формы реорганизации.
Реорганизация юридического лица – добровольного накопительного пенсионного фонда, страховой (перестраховочной) организации, Фонда гарантирования страховых выплат, специальной финансовой компании, платежной организации осуществляется с учетом особенностей, предусмотренных законодательством Республики Казахстан о пенсионном обеспечении, страховании и страховой деятельности, Фонде гарантирования страховых выплат, проектном финансировании и секьюритизации, платежах и платежных системах.
Реорганизация акционерных обществ осуществляется с учетом особенностей, установленных законодательным актом Республики Казахстан об акционерных обществах.
2. Реорганизация может быть проведена добровольно или принудительно. 3. Принудительная реорганизация может быть осуществлена по решению
судебных органов в случаях, предусмотренных законодательными актами. Если собственник имущества юридического лица, уполномоченный им орган,
учредители или орган юридического лица, уполномоченный на реорганизацию его учредительными документами, не осуществит реорганизацию юридического лица в срок, определенный в решении судебного органа, суд назначает управляющего юридическим лицом и поручает ему осуществить реорганизацию этого юридического лица. С момента назначения управляющего к нему переходят полномочия по управлению делами юридического лица. Управляющий выступает от имени юридического лица в суде, составляет разделительный баланс и передает его на утверждение суда вместе с учредительными документами возникающих в результате реорганизации юридических лиц. Утверждение судом указанных документов является основанием для государственной регистрации вновь возникающих юридических лиц.
4. Юридическое лицо считается реорганизованным, за исключением случаев реорганизации в форме присоединения, с момента регистрации вновь возникших юридических лиц.
При реорганизации юридического лица путем присоединения к нему другого юридического лица первое из них считается реорганизованным с момента внесения в Национальный реестр бизнес-идентификационных номеров сведений о прекращении деятельности присоединенного юридического лица.
Сноска. Статья 45 с изменениями, внесенными законами РК от 19.06.1997 N 134; от 18.12.2000 N 128; от 08.07.2005 N 72 (порядок введения в действие см. ст. 2); от 20.02.2006 N 127 (порядок введения в действие см. ст.2); от 30.12.2009 № 234-IV; от 12.01.2012 № 539-IV(вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 21.06.2013 № 106-V ( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 26.07.2016 № 12-VІ (вводится в действие по истечении тридцати календарных дней после дня его первого официального опубликования).
Статья 46. Правопреемство при реорганизации юридических лиц
1. При слиянии юридических лиц права и обязанности каждого из них переходят к вновь возникшему юридическому лицу в соответствии с передаточным актом.
2. При присоединении юридического лица к другому юридическому лицу к последнему переходят права и обязанности присоединенного юридического лица в соответствии с передаточным актом.
3. При разделении юридического лица его права и обязанности переходят к вновь возникшим юридическим лицам в соответствии с разделительным балансом.
4. При выделении из состава юридического лица одного или нескольких юридических лиц к каждому из них в соответствии с разделительным балансом переходят права и обязанности реорганизованного юридического лица.
5. При преобразовании юридического лица одного вида в юридическое лицо другого вида (изменении организационно-правовой формы) к вновь возникшему юридическому лицу переходят права и обязанности реорганизованного юридического лица в соответствии с передаточным актом.
Статья 47. Передаточный акт и разделительный баланс
1. Имущественные права и обязанности реорганизованного юридического лица переходят к вновь возникшему юридическому лицу: при слиянии и присоединении - в соответствии с передаточным актом, при разделении и выделении - в соответствии с разделительным балансом.
Передаточный акт и разделительный баланс должны содержать положения о правопреемстве по всем обязательствам реорганизованного юридического лица в отношении всех его кредиторов и должников, включая и обязательства, оспариваемые сторонами.
2. Передаточный акт и разделительный баланс утверждаются собственником имущества юридического лица или органом, принявшим решение о реорганизации юридического лица, и представляются вместе с учредительными документами для регистрации вновь возникших юридических лиц или внесения изменений в учредительные документы существующих юридических лиц.
Непредставление с учредительными документами соответственно передаточного акта или разделительного баланса, а также отсутствие в них положений о правопреемстве по обязательствам реорганизованного юридического лица влечет отказ в государственной регистрации вновь возникших юридических лиц.
3. Имущество (права и обязанности) переходит к правопреемнику в момент его регистрации, если иное не предусмотрено законодательными актами или решением о реорганизации.
Статья 48. Гарантии прав кредиторов юридического лица при его реорганизации
1. Собственник имущества юридического лица или орган, принявший решение о реорганизации юридического лица, обязан письменно уведомить об этом кредиторов реорганизуемого юридического лица. Срок заявления претензий не может быть менее двух месяцев с момента получения уведомлений кредиторами реорганизуемого юридического лица.
2. При разделении и выделении кредитор реорганизуемого юридического лица вправе потребовать досрочного прекращения обязательства, должником по которому является это юридическое лицо, и возмещения убытков.
3. Если разделительный баланс не дает возможности определить правопреемника реорганизованного юридического лица либо если у правопреемника недостаточно имущества для исполнения обязательств, возникших до реорганизации, вновь возникшие юридические лица, а также юридическое лицо, из состава которого выделилось другое юридическое лицо, несут солидарную ответственность по обязательствам реорганизованного юридического лица перед его кредиторами.
Сноска. Статья 48 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 02.04.2010 № 262-IV (вводится в действие с 21.10.2010); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 49. Основания ликвидации юридического лица
1. По решению собственника его имущества или уполномоченного собственником органа, а также органа юридического лица, уполномоченного на то учредительными документами, юридическое лицо может быть ликвидировано по любому основанию.
Ликвидация юридического лица – добровольного накопительного пенсионного фонда, страховой (перестраховочной) организации, Фонда гарантирования страховых выплат, специальной финансовой компании, хлопкоперерабатывающей организации осуществляется с учетом особенностей, предусмотренных законодательством Республики Казахстан о пенсионном
обеспечении, страховании и страховой деятельности, Фонде гарантирования страховых выплат, проектном финансировании и секьюритизации, развитии хлопковой отрасли.
2. По решению суда юридическое лицо может быть ликвидировано в случаях: 1) банкротства;
2) признания недействительной регистрации юридического лица в связи с допущенными при его создании нарушениями законодательства, которые носят неустранимый характер;
3) отсутствия юридического лица по месту нахождения или по фактическому адресу, а также учредителей (участников) и должностных лиц, без которых юридическое лицо не может функционировать в течение одного года;
4) осуществления деятельности с грубым нарушением законодательства: систематического осуществления деятельности, противоречащей уставным
целям юридического лица; осуществления деятельности без надлежащей лицензии либо деятельности,
запрещенной законодательными актами; 5) предусмотренных другими законодательными актами. 3. Требование о ликвидации юридического лица по основаниям, указанным в
пункте втором настоящей статьи, может быть предъявлено в суд государственным органом, которому право на предъявление такого требования предоставлено законодательными актами, а в случаях банкротства - также кредитором.
Решением суда о ликвидации юридического лица обязанности по осуществлению ликвидации юридического лица могут быть возложены на собственника его имущества, уполномоченный собственником орган, орган, уполномоченный на ликвидацию юридического лица его учредительными документами, либо иной орган (лицо), назначенный судом.
4. Если стоимость имущества юридического лица, в отношении которого в порядке, установленном пунктом 1 настоящей статьи, принято решение о ликвидации, недостаточна для удовлетворения требований кредиторов, такое юридическое лицо должно быть ликвидировано в порядке, установленном законодательством Республики Казахстан о реабилитации и банкротстве.
5. Ликвидация отдельных видов юридических лиц возможна по решению соответствующего органа, уполномоченного государством, по основаниям, предусмотренным законодательными актами.
Сноска. Статья 49 с изменениями, внесенными законами РК от 21.01.1997 № 68; от 19.06.1997 № 134; от 02.03.1998 № 211; от 18.12.2000 № 128; от 24.12.2001 № 276 (вводится в действие с 01.01.2002); от 20.02.2006 N 127 (порядок введения в действие см. ст.2); от 12.01.2007 № 225 (вводится в действие со дня его
официального опубликования); от 21.07.2007 № 299; от 30.12.2009 № 234-IV; от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 12.01.2012 № 539-IV( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 21.06.2013 № 106-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 16.05.2014 № 203-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования).
Статья 50. Порядок ликвидации юридического лица
1. Собственник имущества юридического лица или орган, принявший решение о ликвидации юридического лица, обязан незамедлительно письменно или через интернет-ресурс с применением электронной цифровой подписи сообщить об этом органу юстиции либо Государственной корпорации " Правительство для граждан", осуществляющим регистрацию юридических лиц, органу государственных доходов по месту регистрации.
2. Собственник имущества юридического лица или орган, принявший решение о ликвидации юридического лица, назначают ликвидационную комиссию и устанавливают в соответствии с настоящим Кодексом порядок и сроки ликвидации.
С момента назначения ликвидационной комиссии к ней переходят полномочия по управлению имуществом и делами юридического лица. Ликвидационная комиссия от имени ликвидируемого юридического лица выступает в суде.
3. Ликвидационная комиссия публикует информацию о ликвидации юридического лица, а также порядке и сроке заявления претензий его кредиторами в периодических печатных изданиях, распространяемых на всей территории Республики Казахстан. Срок заявления претензий не может быть менее двух месяцев с момента публикации объявления о ликвидации, за исключением случаев банкротства. При банкротстве требования кредиторов к банкроту должны быть заявлены не позднее чем в месячный срок с момента публикации объявления о порядке заявления требований кредиторами.
Ликвидационная комиссия принимает меры к выявлению кредиторов и получению задолженности, а также письменно уведомляет кредиторов о ликвидации юридического лица.
4. После истечения срока для предъявления претензий кредиторами ликвидационная комиссия составляет промежуточный ликвидационный баланс, который содержит сведения о составе имущества ликвидируемого юридического лица, перечне заявленных кредиторами претензий, а также результатах их рассмотрения.
Промежуточный ликвидационный баланс утверждается собственником имущества юридического лица или органом, принявшим решение о ликвидации юридического лица.
При составлении промежуточного ликвидационного баланса в состав имущества ликвидируемого юридического лица не включаются выделенные активы, являющиеся обеспечением по обязательствам специальной финансовой компании при проектном финансировании, по облигациям специальной финансовой компании при секьюритизации, выпущенным в соответствии с законодательством Республики Казахстан о проектном финансировании и секьюритизации, и залоговое имущество, являющееся следующим обеспечением по ипотечным облигациям: права требования по договорам ипотечного жилищного займа (включая ипотечные свидетельства), а также государственные ценные бумаги Республики Казахстан в случаях, когда право собственности на указанные облигации возникло у их держателей или перешло к ним по сделкам либо по иным основаниям, предусмотренным законодательными актами Республики Казахстан. Указанное имущество и выделенные активы передаются ликвидационной комиссией представителю держателей ипотечных облигаций, представителю кредиторов и (или) держателей облигаций, определенных в соответствии с законодательством Республики Казахстан о проектном финансировании и секьюритизации, для удовлетворения требований кредиторов.
При составлении промежуточного ликвидационного баланса в состав имущества ликвидируемой государственной исламской специальной финансовой компании не включается имущество, проданное государственной исламской специальной финансовой компании на основании решения Правительства Республики Казахстан. Указанное имущество передается ликвидационной комиссией в собственность Республики Казахстан в порядке и сроки, определяемые Правительством Республики Казахстан.
5. Если у ликвидируемого юридического лица (кроме государственных учреждений) недостаточно денег для удовлетворения требований кредиторов, ликвидационная комиссия осуществляет продажу имущества юридического лица с публичных торгов в порядке, установленном для исполнения судебных решений.
При продаже с публичных торгов заложенного имущества, включенного в состав имущества ликвидируемого юридического лица, требования залоговых
кредиторов удовлетворяются преимущественно перед другими кредиторами в пределах суммы, полученной от реализации заложенного имущества.
В случае недостаточности суммы от реализации предмета залога оставшаяся сумма требований залогового кредитора удовлетворяется в порядке очередности, установленной статьей 51 настоящего Кодекса.
6. Выплата денег кредиторам ликвидируемого юридического лица производится ликвидационной комиссией в порядке очередности, установленной статьей 51 настоящего Кодекса, в соответствии с промежуточным ликвидационным балансом, начиная со дня его утверждения. Особенности распределения имущества акционерных обществ устанавливаются законодательством Республики Казахстан об акционерных обществах.
При наличии в составе имущества ликвидируемого юридического лица заложенного имущества залоговый кредитор вправе удовлетворить свои требования путем принятия заложенного имущества в натуре.
Ликвидационная комиссия в течение десяти рабочих дней со дня получения от залогового кредитора уведомления о принятии заложенного имущества в натуре проводит его оценку.
Передача заложенного имущества залоговому кредитору производится после проведения оценки с учетом требований, предусмотренных частями пятой и шестой настоящего пункта.
В случае если оценочная стоимость заложенного имущества за вычетом расходов, понесенных на оценку предмета залога, больше чем требования залогового кредитора, то разница возвращается залоговым кредитором в состав имущества ликвидируемого юридического лица.
В случае, если оценочная стоимость заложенного имущества за вычетом расходов, понесенных на оценку предмета залога, меньше чем требования залогового кредитора, требования залогового кредитора в размере разницы подлежат удовлетворению в порядке очередности, установленной статьей 51 настоящего Кодекса.
7. После завершения расчетов с кредиторами ликвидационная комиссия составляет ликвидационный баланс, который утверждается собственником имущества юридического лица или органом, принявшим решение о ликвидации юридического лица.
8. Оставшееся после удовлетворения требований кредиторов имущество направляется на цели, указанные в учредительных документах.
9. При недостаточности у ликвидируемого казенного предприятия имущества , а у ликвидируемого учреждения - денег для удовлетворения требований
кредиторов последние вправе обратиться в суд с иском об удовлетворении оставшейся части требований за счет собственника имущества этого предприятия или учреждения.
9-1 Исключен Законом РК от 01.03.2011 № 414-IV (вводится в действие со. дня его первого официального опубликования).
10. Ликвидация юридического лица считается завершенной, а юридическое лицо прекратившим свою деятельность после внесения об этом сведений в Национальный реестр бизнес-идентификационных номеров.
Сноска. Статья 50 с изменениями, внесенными законами РК от 15.07.1996 N 30; от 11.07.1997 № 154; от 02.03.1998 № 211; от 10.07.1998 № 282; от 16.12.1998 № 320; от 03.06.2003 N 426; от 10.01.2006 № 115 (вводится в действие со дня его официального опубликования); от 20.02.2006 № 127 (порядок введения в действие см. ст.2); от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 12.01.2012 № 539-IV(вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 07.11.2014 № 248-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 29.10.2015 № 376- V (вводится в действие с 01.01.2016); от 24.11.2015 № 422-V (вводится в действие с 01.01.2016); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.04.2019 № 241-VI (порядок введения в действие см. ст.2).
Статья 51. Удовлетворение требований кредиторов
1. При ликвидации юридического лица, за исключением случаев банкротства, требования его кредиторов удовлетворяются в следующей очередности:
1) в первую очередь - удовлетворяются требования по уплате удержанных из заработной платы и (или) иного дохода алиментов, а также требования граждан, перед которыми ликвидируемое юридическое лицо несет ответственность за причинение вреда жизни или здоровью, путем капитализации соответствующих повременных платежей;
Примечание РЦПИ! В подпункт 2) предусмотрено изменение Законом РК от 02.08.2015 № 342-V (
вводится в действие с 01.01.2020).
2) во вторую очередь – производятся расчеты по оплате труда и выплате компенсаций лицам, работавшим по трудовому договору, уплате задолженностей по социальным отчислениям в Государственный фонд социального страхования, удержанным из заработной платы обязательным пенсионным взносам, обязательным профессиональным пенсионным взносам, по отчислениям и (или) взносам на обязательное социальное медицинское страхование в фонд социального медицинского страхования, а также оплате вознаграждений по авторским договорам, за исключением случаев, когда часть сумм требований в соответствии с законодательным актом Республики Казахстан, регулирующим вопросы банкротства, удовлетворяется в пятую очередь;
3) в третью очередь – удовлетворяются требования кредиторов по обязательствам, обеспеченным залогом имущества ликвидируемого банкрота, в пределах суммы обеспечения, за исключением требований кредиторов – держателей ипотечных облигаций, обеспеченных залогом прав требования по договорам ипотечного жилищного займа (включая залог ипотечных свидетельств ), государственных ценных бумаг Республики Казахстан в случаях, когда право собственности на указанные облигации возникло у их держателей или перешло к ним по сделкам либо по иным основаниям, предусмотренным законодательными актами Республики Казахстан, а также требований кредиторов, которые удовлетворены в соответствии с частью второй пункта 5 или частью второй пункта 6 статьи 50 настоящего Кодекса;
4) в четвертую очередь - погашается задолженность по налогам и другим обязательным платежам в бюджет;
5) в пятую очередь – производятся расчеты с другими кредиторами в соответствии с законодательными актами Республики Казахстан, а также с залоговыми кредиторами в случаях, предусмотренных частью третьей пункта 5 и частью шестой пункта 6 статьи 50 настоящего Кодекса;
2. Требования каждой очереди удовлетворяются после полного удовлетворения требований предыдущей очереди.
3. При недостаточности имущества ликвидируемого юридического лица оно распределяется между кредиторами соответствующей очереди пропорционально суммам требований, подлежащих удовлетворению, если иное не установлено законом.
4. В случае отказа ликвидационной комиссии в удовлетворении требований кредитора либо уклонения от их рассмотрения кредитор вправе до утверждения ликвидационного баланса юридического лица обратиться в суд с иском к ликвидационной комиссии. По решению суда требования кредитора могут быть удовлетворены за счет оставшегося имущества ликвидированного юридического лица.
5. Оставшееся после удовлетворения требований кредиторов имущество юридического лица передается его собственнику или учредителям (участникам), имеющим вещные права на это имущество или обязательственные права в отношении юридического лица, если иное не предусмотрено законодательством или учредительными документами юридического лица.
6. Претензии кредиторов, не удовлетворенные из-за недостаточности имущества ликвидируемого юридического лица, а также не заявленные до утверждения ликвидационного баланса, считаются погашенными.
Погашенными считаются также требования кредиторов, не признанные ликвидационной комиссией, если кредитор не обращался с иском в суд, и требования, в удовлетворении которых решением суда кредитору отказано.
Сноска. Статья 51 с изменениями, внесенными законами РК от 21.01.1997 N 68; от 02.03.1998 N 211; от 11.07.2001 N 239; от 03.06.2003 N 426; от 08.04.2004 N 542 (вводится в действие с 01.01.2005); от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 21.06.2013 № 106-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 16.11.2015 № 406-V (вводится в действие с 01.07.2017); от 02.04.2019 № 241-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 52. Банкротство
Банкротство - признанная решением суда несостоятельность должника, являющаяся основанием для его ликвидации.
Примечание РЦПИ! В часть вторую предусмотрено изменение Законом РК от 02.08.2015 № 342-V
(вводится в действие с 01.01.2020). Под несостоятельностью понимается установленная судом неспособность
должника (индивидуального предпринимателя или юридического лица) в полном объеме удовлетворить требования кредиторов по денежным обязательствам, произвести расчеты по оплате труда с лицами, работающими по трудовому договору, обеспечить уплату налогов и других обязательных платежей в бюджет, социальных отчислений в Государственный фонд социального страхования, отчислений и (или) взносов на обязательное социальное медицинское страхование в фонд социального медицинского страхования, а также обязательных пенсионных взносов и обязательных профессиональных пенсионных взносов.
Сноска. Статья 52 в редакции Закона РК от 21.01.1997 N 68; от 29.06.1998 № 238; с изменениями, внесенными законами РК от 05.07.2008 N 60-IV (порядок введения в действие см. ст.2); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 16.11.2015 № 406-V (вводится в действие с 01.07.2017).
Статья 53. Признание банкротства
1. Признание банкротства возможно в добровольном или принудительном порядке.
2. Признание банкротства в добровольном порядке осуществляется на основании заявления должника в суд.
3. Признание банкротства в принудительном порядке осуществляется на основании заявления в суд кредитора, а в случаях, предусмотренных законодательными актами, и иных лиц.
Сноска. Статья 53 в редакции Законов Республики Казахстан от 21 января 1997 г. N 68; от 29 июня 1998 г. № 238.
Статья 54. Реабилитационные процедуры
К неплатежеспособному должнику могут быть применены любые не противоречащие законодательству меры, направленные на восстановление его платежеспособности с целью предотвращения ликвидации.
Указанные меры реализуются в рамках ускоренной реабилитационной процедуры, реабилитационной процедуры, порядок и сроки осуществления которых определяются законодательством Республики Казахстан о реабилитации и банкротстве.
Сноска. Статья 54 в редакции Закона РК от 17.02.2012 № 564-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); с изменением, внесенным Законом РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 54-1. Внешнее наблюдение
Сноска. Статья 54-1 исключена Законом РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 55. Последствия возбуждения процедуры банкротства
1. Со дня вынесения судом решения о признании должника банкротом и возбуждении процедуры банкротства:
1) собственнику имущества банкрота (уполномоченному им органу), учредителям (участникам), всем органам юридического лица-банкрота запрещаются отчуждение имущества и погашение обязательств;
2) сроки всех долговых обязательств банкрота считаются истекшими; 3) прекращается начисление неустойки и вознаграждения (интереса) по всем
видам задолженности банкрота; 4) прекращаются споры имущественного характера с участием банкрота,
рассматриваемые в суде, если принятые по ним решения не вступили в законную силу;
5) требования могут быть предъявлены банкроту только в рамках процедуры банкротства, за исключением требований по исполнению гарантий и поручительств третьих лиц, а также обращения взыскания на предмет залога в случаях, когда залогодателем выступают третьи лица;
6) на основании заявления временного или банкротного управляющего и представленной копии решения суда о признании должника банкротом снимаются все ограничения и обременения на имущество банкрота (инкассовые распоряжения финансовых и государственных органов на счета должника, аресты на имущество, наложенные судебными исполнителями, и другие) без принятия соответствующих решений органов, их наложивших;
7) наложение новых арестов на имущество банкрота и иных ограничений в распоряжении имуществом банкрота допускается только по искам о признании сделки недействительной и истребовании имущества из чужого незаконного владения, предъявляемым к банкроту;
8) имущество банкрота, не переданное приобретателю на момент возбуждения процедуры банкротства, включается в состав имущественной массы банкрота, а кредитор или несостоявшийся приобретатель по неисполненному обязательству вправе предъявить свои требования к должнику в рамках процедуры банкротства.
Сноска. Статья 55 в редакции Закона РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 56. Освобождение несостоятельного должника от долгов
1. После продажи имущества и распределения вырученных от продажи денег между кредиторами несостоятельный должник освобождается от исполнения
оставшихся обязательств и иных требований, предъявленных к исполнению и учтенных при признании юридического лица банкротом.
2. Несостоятельный должник не получает освобождение от обязательств в случае, если он скрыл или передал в целях сокрытия другому лицу в течение трех лет до начала ликвидационного производства часть своего имущества, утаил или сфальсифицировал необходимую отчетную информацию, включая бухгалтерские книги, счета, документы.
Сноска. Статья 56 в редакции Закона РК от 02.03.1998 N 211; с изменениями, внесенными законами РК от 11.07.2001 N 239; от 10.01.2006 N 115 (вводится в действие со дня его официального опубликования).
Статья 57. Прекращение деятельности юридического лица-банкрота
1. Признание судом юридического лица банкротом влечет его ликвидацию. 2. Деятельность юридического лица-банкрота считается прекращенной с
момента исключения его из Национального реестра бизнес-идентификационных номеров.
Сноска. Статья 57 с изменением, внесенным Законом РК от 24.12.2012 № 60- V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
II. Хозяйственное товарищество 1. Общие положения
Статья 58. Основные положения о хозяйственном товариществе
1. Хозяйственным товариществом признается коммерческая организация с разделенным на доли (вклады) учредителей (участников) уставным капиталом. Имущество, созданное за счет вкладов учредителей (участников), а также произведенное и приобретенное хозяйственным товариществом в процессе его деятельности, принадлежит товариществу на праве собственности.
2. Хозяйственные товарищества могут создаваться в форме полного товарищества, коммандитного товарищества, товарищества с ограниченной ответственностью, товарищества с дополнительной ответственностью.
3. Хозяйственное товарищество, кроме полного и коммандитного товарищества, может быть создано одним лицом, которое становится его единственным участником.
Участниками полного товарищества и полными товарищами в коммандитном товариществе могут быть только граждане.
4. Учредительными документами хозяйственного товарищества являются учредительный договор и устав.
Учредительным документом хозяйственного товарищества, которое учреждено одним лицом (одним участником), является устав.
5. Исключен Законом РК от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
6. Учредительные документы хозяйственного товарищества должны содержать помимо сведений, указанных в пунктах 4 и 5 статьи 41 настоящего Кодекса, условия о размере долей каждого из участников; о размере, составе, сроках и порядке внесения ими вкладов в уставный капитал товарищества; об ответственности участников за нарушение обязанностей по внесению вкладов в уставный капитал товарищества, а также иные сведения, предусмотренные законодательными актами.
7. Исключен Законом РК от 02.03.1998 № 211. 8. Хозяйственное товарищество может быть учредителем других
хозяйственных товариществ за исключением случаев, предусмотренных законодательными актами.
9. Исключен Законом РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Сноска. Статья 58 с изменениями, внесенными законами РК от 11.07.1997 N 154; от 02.03.1998 N 211; от 10.07.1998 N 282; от 16.05.2003 N 416; от 08.07.2005 N 72 (порядок введения в действие см. ст. 2); от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 20.01.2010 № 239-IV; от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V ( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 59. Вклад в уставный капитал хозяйственного товарищества. Доля участника в уставном капитале и имуществе хозяйственного товарищества
1. Вкладом в уставный капитал хозяйственного товарищества могут быть деньги, ценные бумаги, вещи, имущественные права, включая права на результаты интеллектуальной деятельности, и иное имущество (за исключением
специальных финансовых компаний, создаваемых в соответствии с законодательством Республики Казахстан о проектном финансировании и секьюритизации, микрофинансовых организаций, создаваемых в соответствии с законодательством Республики Казахстан о микрофинансовых организациях, и исламских специальных финансовых компаний, создаваемых в соответствии с законодательством Республики Казахстан о рынке ценных бумаг, уставный капитал которых формируется исключительно деньгами).
Вклады учредителей (участников) в уставный капитал в натуральной форме или в виде имущественных прав оцениваются в денежной форме по соглашению всех учредителей или по решению общего собрания всех участников товарищества. Если стоимость такого вклада превышает сумму, эквивалентную двадцати тысячам размеров месячных расчетных показателей, ее оценка должна быть подтверждена оценщиком.
При перерегистрации хозяйственного товарищества денежная оценка вклада его участника может подтверждаться бухгалтерскими документами товарищества либо аудиторским отчетом.
Учредители (участники) товарищества в течение пяти лет с момента такой оценки несут солидарную ответственность перед кредиторами товарищества в пределах суммы, на которую завышена оценка вклада.
В случаях, когда в качестве вклада товариществу передается право пользования имуществом, размер этого вклада определяется платой за пользование таким имуществом, исчисленной за весь срок, указанный в учредительных документах.
Не допускается внесение вкладов в виде личных неимущественных прав и иных нематериальных благ. Также не допускается внесение вкладов путем зачета требования участников к товариществу, за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
2. Доли всех участников в уставном капитале и соответственно их доли в стоимости имущества хозяйственного товарищества (доля в имуществе) пропорциональны их вкладам в уставный капитал, если иное не предусмотрено учредительными документами.
Участник хозяйственного товарищества имеет право закладывать и (или) продавать свою долю или ее часть в имуществе (уставном капитале) товарищества, если иное не предусмотрено законодательными актами Республики Казахстан или учредительными документами.
Договор отчуждения (уступки) права выбывающего участника хозяйственного товарищества на долю в имуществе (уставном капитале) товарищества или ее части, стороной которого является физическое лицо, подлежит нотариальному удостоверению.
3. Порядок и сроки внесения вкладов в уставный капитал, а также ответственность за неисполнение обязательств по формированию уставного капитала устанавливаются законодательными актами и (или) учредительными документами.
4. Уменьшение уставного капитала хозяйственного товарищества допускается после уведомления всех его кредиторов. Последние вправе в этом случае потребовать досрочного прекращения или исполнения соответствующих обязательств товарищества и возмещения им убытков.
Уменьшение уставного капитала в нарушение установленного настоящим пунктом порядка является основанием для ликвидации товарищества по решению суда на основании заявления заинтересованных лиц.
Сноска. Статья 59 с изменениями, внесенными законами РК от 15.07.1996 N 30; от 11.07.1997 N 154; от 02.03.1998 N 211; от 20.02.2006 N 127 (порядок введения в действие см. ст.2); от 05.05.2006 N 139 (порядок введения в действие см. ст.2); от 12.02.2009 № 133-IV (порядок введения в действие см. ст.2); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 12.01.2012 № 539-IV( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 26.11.2012 № 57-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.11.2015 № 422-V (вводится в действие с 01.01.2016); от 27.02.2017 № 49-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 21.01.2019 № 217-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 60. Управление хозяйственным товариществом
1. Высшим органом хозяйственного товарищества является общее собрание его участников.
В хозяйственных товариществах, кроме полного и коммандитного товарищества, учрежденных одним лицом, полномочия общего собрания принадлежат его единственному участнику.
2. В хозяйственном товариществе создается исполнительный орган ( коллегиальный и (или) единоличный), осуществляющий текущее руководство его деятельностью и подотчетный общему собранию его участников. Единоличный орган управления может быть избран не из числа его участников.
В качестве коллегиальных органов товарищества могут быть созданы: 1) правление (дирекция); 2) наблюдательный совет; 3) другие органы в случаях, предусмотренных законодательными актами или
решением общего собрания участников хозяйственного товарищества. 2-1. В случаях признания хозяйственного товарищества банкротом или
применения реабилитационной процедуры и назначения временного либо банкротного или реабилитационного управляющего в установленном законом порядке все полномочия по управлению им переходят соответственно к временному либо банкротному или реабилитационному управляющему.
3. Компетенция органов хозяйственного товарищества, порядок их избрания ( назначения), а также порядок принятия ими решений определяются в соответствии с настоящим Кодексом, законодательными актами и учредительными документами.
4. Хозяйственное товарищество может для проверки и подтверждения правильности финансовой отчетности привлекать аудиторскую организацию, не связанную имущественными интересами с товариществом или его участниками ( внешний аудит).
Аудиторская проверка хозяйственного товарищества должна быть проведена в любое время по требованию одного или нескольких участников товарищества за счет его (их) средств.
Порядок проведения аудиторской проверки деятельности хозяйственного товарищества определяется законодательством и учредительными документами товарищества.
Сноска. Статья 60 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 22.04.1998 № 221; от 05.05.2006 № 139 (порядок введения в действие см. ст.2 Закона РК № 139); от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 61. Права и обязанности участников хозяйственного товарищества
1. Участники хозяйственного товарищества имеют право: 1) участвовать в управлении делами хозяйственного товарищества в порядке,
определенном учредительными документами; 2) получать информацию о деятельности хозяйственного товарищества и
знакомиться с его документацией в установленном учредительными документами порядке;
3) принимать участие в распределении чистого дохода. Условия учредительных документов, предусматривающие устранение одного или нескольких участников от участия в распределении чистого дохода, ничтожны;
4) получать в случае ликвидации хозяйственного товарищества часть его имущества, соответствующую их доле в имуществе товарищества, оставшегося после расчетов с кредиторами, или его стоимость.
Участники хозяйственного товарищества могут иметь и другие права, предусмотренные законодательными актами и учредительными документами.
2. Участники хозяйственного товарищества обязаны: 1) соблюдать требования учредительных документов;
2) вносить вклады в порядке, размерах, способами и в сроки, предусмотренные учредительными документами;
3) не разглашать сведения, которые хозяйственным товариществом объявлены коммерческой тайной.
Участники хозяйственного товарищества могут нести и другие обязанности, предусмотренные законодательными актами Республики Казахстан и учредительными документами.
Сноска. Статья 61 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 19.02.2007 № 230 (порядок введения в действие см. ст.2); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 62. Преобразование хозяйственных товариществ
1. Хозяйственные товарищества одного вида могут преобразовываться в хозяйственные товарищества другого вида либо в акционерные общества или производственные кооперативы по решению общего собрания участников в случаях и в порядке, установленных законодательными актами.
2. При преобразовании полного или коммандитного товарищества в акционерное общество, товарищество с ограниченной или дополнительной ответственностью каждый полный товарищ, ставший участником акционерного общества, товарищества с ограниченной или дополнительной ответственностью, в течение двух лет несет субсидиарную ответственность всем своим имуществом по обязательствам, перешедшим к акционерному обществу, товариществу с ограниченной или дополнительной ответственностью от полного или коммандитного товарищества. Отчуждение бывшим полным товарищем принадлежащих ему акций (долей) не освобождает его от такой ответственности.
Сноска. Пункт 1 статьи 62 дополнен на основании Закона РК от 15.07.1996 № 30 "О внесении изменений и дополнений в некоторые законодательные акты Республики Казахстан". Внесены изменения - Законом РК от 16.07.1999 № 436.
2. Полное товарищество
Статья 63. Основные положения о полном товариществе
1. Полным признается товарищество, участники которого при недостаточности имущества полного товарищества несут солидарную ответственность по его обязательствам всем принадлежащим им имуществом.
2. Гражданин может быть участником только одного полного товарищества.
Статья 64. Уставный капитал полного товарищества
Размер уставного капитала полного товарищества определяется его учредителями, но не может быть менее минимального размера, установленного законодательными актами Республики Казахстан.
Минимальный размер уставного капитала микрофинансовых организаций, созданных в форме полного товарищества, определяется законодательством Республики Казахстан о микрофинансовых организациях.
Сноска. Статья 64 в редакции Закона РК от 26.11.2012 № 57-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 65. Ведение дел полного товарищества
1. Высшим органом полного товарищества является общее собрание участников. Решение по внутренним вопросам полного товарищества принимается по общему соглашению всех участников. Учредительным договором товарищества могут быть предусмотрены случаи, когда решение принимается большинством голосов участников. Каждый участник полного товарищества имеет один голос, если учредительным договором не предусмотрен иной порядок определения количества голосов его участников. Учредительным договором может быть предусмотрено, что количество голосов, которым располагают участники, определяется соразмерно их доли в уставном капитале.
2. Управление полным товариществом с учетом положений пункта 1 настоящей статьи осуществляют исполнительные органы полного товарищества.
Виды, порядок образования органов управления и их компетенция определяются учредительными документами.
3. Участник полного товарищества не вправе без согласия остальных участников совершать от своего имени и в своих интересах или в интересах третьих лиц сделки, однородные с теми, которые составляют предмет деятельности товарищества. При нарушении этого правила товарищество вправе по своему выбору потребовать от такого участника либо возмещения причиненных товариществу убытков, либо передачи товариществу всей приобретенной по таким сделкам выгоды.
4. Органы полного товарищества, которым поручено ведение дел товарищества, обязаны представлять всем участникам по их требованию полную информацию о своей деятельности.
5. Участник, действовавший в общих интересах, не имея полномочий, в случаях, когда его действия не будут одобрены всеми остальными участниками, вправе требовать от товарищества возмещения произведенных им расходов при условии, если докажет, что благодаря его действиям товарищество сберегло или соответственно приобрело имущество, превышающее по стоимости понесенные товариществом расходы.
Сноска. Статья 65 с изменениями, внесенными Законом РК от 11.07.1997 N 154.
Статья 66. Переход доли (части доли) участника полного товарищества
1. Передача участником своей доли (части доли) другим участникам полного товарищества либо третьим лицам возможна лишь с согласия всех остальных участников.
2. При передаче доли (части доли) третьему лицу происходит одновременно переход всей совокупности прав и обязанностей, принадлежавших участнику, выбывшему из полного товарищества.
3. В случае смерти участника полного товарищества правопреемник ( наследник) может с согласия всех остальных участников вступить в товарищество.
4. Правопреемник (наследник) несет ответственность по долгам участника перед полным товариществом, а также по долгам товарищества перед третьими лицами, возникшими за все время деятельности товарищества.
5. При отказе правопреемника (наследника) от вступления в полное товарищество либо отказе товарищества от приема правопреемника (наследника) ему выплачивается стоимость принадлежащей ему на основе правопреемства доли в имуществе товарищества, определяемой на день смерти участника.
В этих случаях соответственно уменьшается размер имущества товарищества , указанный в учредительном договоре (уставе), в срок, предусмотренный в учредительном договоре (уставе), но не позднее трех месяцев.
Статья 67. Выход участника из полного товарищества
1. Участник полного товарищества может в любое время выйти из товарищества, предупредив об этом остальных участников не менее чем за срок, предусмотренный законодательными актами или учредительным договором.
2. Если при выходе участника полное товарищество сохраняется, выбывающему участнику выплачивается стоимость его доли в имуществе товарищества, пропорциональной внесенному вкладу, в соответствии с балансом , составленным на день выхода. По требованию участника и с согласия товарищества вклад может быть возвращен полностью или частично в натуральной форме. Выбывшему участнику выплачивается также причитающаяся ему часть чистого дохода, полученная товариществом в данном году за период его нахождения в товариществе в этом году.
Имущество, переданное участником товарищества только в пользование, возвращается в натуральной форме без вознаграждения.
Сноска. Статья 67 с изменениями, внесенными Законом РК от 11.07.1997 N 154.
Статья 68. Исключение участника из полного товарищества
1. Участники полного товарищества вправе требовать в судебном порядке исключения одного или нескольких участников из товарищества по единогласному решению остающихся участников и при наличии к тому уважительных причин, в частности, грубого нарушения им (ими) своих обязанностей или обнаружившейся неспособности к ведению дел.
2. Участнику, исключенному из полного товарищества, выплачивается стоимость части имущества в порядке, определенном пунктом 2 статьи 67 настоящего Кодекса.
Статья 69. Обращение взыскания на долю участника в полном товариществе
1. Обращение взыскания на долю участника в имуществе полного товарищества по его личным долгам допускается лишь при недостатке иного его имущества для покрытия долгов. Кредиторы такого участника вправе потребовать от полного товарищества выдела части имущества товарищества,
пропорционально доле должника в уставном капитале, с целью обращения взыскания на это имущество. Подлежащая выделу часть имущества товарищества или его стоимость определяется по балансу, составленному на момент предъявления кредиторами требования о выделе.
2. Обращение взыскания на долю участника в имуществе полного товарищества прекращает его участие в товариществе и влечет последствия, предусмотренные статьями 70 и 71 настоящего Кодекса.
Сноска. Статья 69 с изменениями, внесенными Законом РК от 11.07.1997 N 154.
Статья 70. Ответственность участников по долгам полного товарищества
1. Если при ликвидации полного товарищества окажется, что наличного имущества не хватает для покрытия всех его долгов, за товарищество в недостающей части несут солидарную ответственность его участники всем своим имуществом, на которое в соответствии с законодательными актами может быть обращено взыскание.
Участник полного товарищества отвечает по долгам товарищества независимо от того, возникли они после или до его вступления в товарищество, если иное не предусмотрено законодательными актами.
2. Участник, погасивший долги полного товарищества в части, превышающей его долю в имуществе товарищества, вправе обратиться с регрессным требованием в соответствующей части к остальным участникам, которые несут перед ним долевую ответственность пропорционально размеру своих долей в имуществе товарищества.
3. Участник, вышедший из полного товарищества по собственному желанию или исключенный из товарищества по решению суда, а также правопреемник ( наследник) умершего участника, отказавшийся от предложения вступить в товарищество, отвечают по обязательствам товарищества, возникшим до момента их выбытия, в течение двух лет со дня утверждения отчета о деятельности товарищества за год, в котором они выбыли из товарищества.
4. Участник, вышедший из полного товарищества в порядке передачи доли другому участнику или третьему лицу, в порядке обращения взыскания на его долю в имуществе товарищества кредитором (кредиторами), а также правопреемник (наследник) умершего участника, которому было отказано остальными участниками в приеме в товарищество, не отвечают по обязательствам товарищества.
5. После прекращения полного товарищества участники несут ответственность по обязательствам товарищества, возникшим до момента его прекращения, в течение двух лет с даты прекращения товарищества.
6. Соглашения участников, изменяющие порядок их ответственности по обязательствам полного товарищества, предусмотренный настоящей статьей, являются ничтожными.
Сноска. Статья 70 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 71. Ликвидация полного товарищества
1. Полное товарищество помимо оснований, указанных в статье 49 настоящего Кодекса, ликвидируется также в случае, когда в товариществе остается единственный участник, если он в течение шести месяцев не преобразует товарищество или не примет новых участников.
2. В случаях выхода или смерти кого-либо из участников полного товарищества, признания одного из них безвестно отсутствующим, недееспособным или ограниченно дееспособным, либо банкротом или обращения кредитором одного из участников взыскания на имущество, соответствующее его доле в уставном капитале, товарищество может продолжить свою деятельность, если это предусмотрено учредительными документами товарищества или соглашением остающихся участников.
3. Если один из участников выбыл из товарищества по основаниям, указанным в пункте 2 настоящей статьи, доли оставшихся участников в уставном капитале товарищества увеличиваются пропорционально их вкладам, если иное не предусмотрено учредительными документами.
Сноска. Статья 71 с изменениями, внесенными Законом РК от 11.07.1997 N 154.
3. Коммандитное товарищество
Статья 72. Основные положения о коммандитном товариществе
1. Коммандитным признается товарищество, которое включает наряду с одним или более участниками, несущими дополнительную ответственность по обязательствам товарищества всем своим имуществом (полными товарищами), также одного или более участников, ответственность которых ограничивается
суммой внесенного ими вклада в имущество товарищества (вкладчиков) и которые не принимают участия в осуществлении товариществом предпринимательской деятельности.
2. Правовое положение полных товарищей, участвующих в коммандитном товариществе, и их ответственность по обязательствам товарищества определяются правилами об участниках полного товарищества.
3. Гражданин может быть полным товарищем только в одном коммандитном товариществе.
Полный товарищ в коммандитном товариществе не может быть участником полного товарищества.
4. К коммандитному товариществу применяются правила настоящего Кодекса о полном товариществе, поскольку это не противоречит положениям настоящего Кодекса о коммандитных товариществах.
Сноска. Статья 72 с изменениями, внесенными Законом РК от 02.03.1998 N 211.
Статья 73. Вкладчик коммандитного товарищества
1. Вкладчик коммандитного товарищества обязан вносить первоначальный вклад и дополнительные взносы (вклады) в размере, способом и порядке, предусмотренными учредительными документами.
2. Вкладчик коммандитного товарищества имеет право: 1) получать часть чистого дохода товарищества, причитающуюся на его долю
в уставном капитале, в порядке, предусмотренном учредительными документами ;
2) знакомиться с финансовой отчетностью товарищества, а также требовать обеспечения возможности проверки правильности ее составления;
3) передать свою долю в уставном капитале или ее часть другому вкладчику или третьему лицу в порядке, предусмотренном законодательными актами Республики Казахстан и учредительными документами товарищества. Передача вкладчиком всей своей доли иному лицу прекращает его участие в товариществе;
4) в порядке, предусмотренном законодательными актами Республики Казахстан и учредительными документами, выйти из товарищества.
Учредительными документами коммандитного товарищества могут предусматриваться и иные права вкладчика.
Отказ от прав, предусмотренных настоящим Кодексом и другими законодательными актами Республики Казахстан для вкладчиков коммандитного товарищества, или их ограничения, в том числе по соглашению вкладчиков и полных товарищей, ничтожен.
3. Если вкладчик совершит сделку в интересах коммандитного товарищества без надлежащих полномочий, то в случае одобрения его действий товариществом оно отвечает по сделке перед кредиторами в полном объеме. Если одобрение не будет получено, вкладчик отвечает перед третьим лицом самостоятельно всем своим имуществом, на которое по законодательству может быть обращено взыскание.
Сноска. Статья 73 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 74. Уставный капитал коммандитного товарищества
1. Уставный капитал коммандитного товарищества составляется из вкладов его участников. В процессе хозяйственной деятельности уставный капитал может быть изменен. Уставный капитал без учета вкладов вкладчиков определяет долю полных товарищей в имуществе коммандитного товарищества.
2. Размер уставного капитала определяется полными товарищами коммандитного товарищества и не может быть менее минимального размера, установленного законодательными актами.
Минимальный размер уставного капитала микрофинансовых организаций, созданных в форме коммандитного товарищества, определяется законодательством Республики Казахстан о микрофинансовых организациях.
3. Уменьшение уставного капитала коммандитного товарищества допускается после уведомления всех его кредиторов. Последние вправе в этом случае потребовать досрочного прекращения или исполнения соответствующих обязательств и возмещения им убытков. Уменьшение уставного капитала в нарушение установленного настоящей статьей порядка является основанием ликвидации коммандитного товарищества по решению суда по заявлению заинтересованных лиц.
Сноска. Статья 74 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 26.11.2012 № 57-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 75. Управление делами коммандитного товарищества
Управление делами коммандитного товарищества осуществляется полными товарищами. Порядок управления и ведения дел коммандитного товарищества его полными товарищами устанавливается ими по правилам о полном
товариществе. Вкладчики не вправе участвовать в управлении делами коммандитного товарищества, а также выступать от его имени, иначе как по доверенности. Вкладчики коммандитного товарищества не вправе оспаривать действия полных товарищей по управлению делами товарищества.
Статья 76. Прекращение коммандитного товарищества
1. Коммандитное товарищество прекращается при выбытии всех участвовавших в нем вкладчиков. Полные товарищи вправе вместо ликвидации преобразовать коммандитное товарищество в полное товарищество. Коммандитное товарищество ликвидируется также по основаниям, предусмотренным для ликвидации полного товарищества.
2. При ликвидации коммандитного товарищества вкладчики имеют преимущественное перед полными товарищами право на получение вкладов из имущества товарищества, оставшегося после удовлетворения требований его кредиторов. Оставшееся после этого имущество коммандитного товарищества распределяется между полными товарищами и вкладчиками пропорционально их вкладам в имуществе товарищества, если иной порядок не установлен учредительными документами.
4. Товарищество с ограниченной ответственностью
Статья 77. Основные положения о товариществе с ограниченной ответственностью
1. Товариществом с ограниченной ответственностью признается учрежденное одним или несколькими лицами товарищество, уставный капитал которого разделен на доли определенных учредительными документами размеров; участники товарищества с ограниченной ответственностью не отвечают по его обязательствам и несут риск убытков, связанных с деятельностью товарищества, в пределах стоимости внесенных ими вкладов. Исключения из этого правила могут быть предусмотрены настоящим Кодексом и законодательными актами.
Участники товарищества с ограниченной ответственностью, не полностью внесшие вклады, несут солидарную ответственность по его обязательствам в пределах стоимости невнесенной части вклада каждого из участников.
2. Число участников товарищества с ограниченной ответственностью не ограничивается.
Товарищество с ограниченной ответственностью не может иметь в качестве единственного участника другое хозяйственное товарищество, состоящее из одного лица.
3. По требованию любого из его участников должна быть проведена аудиторская проверка деятельности товарищества с ограниченной ответственностью.
Публичная отчетность товарищества с ограниченной ответственностью не требуется, за исключением случаев, предусмотренных законодательством или учредительными документами.
4. Товарищество с ограниченной ответственностью может быть добровольно реорганизовано или ликвидировано по решению его участников. Иные основания реорганизации и ликвидации товарищества с ограниченной ответственностью определяются настоящим Кодексом и законодательными актами.
Товарищество с ограниченной ответственностью вправе преобразоваться в иное хозяйственное товарищество, акционерное общество или в производственный кооператив.
6. Правовое положение товарищества с ограниченной ответственностью, права и обязанности его участников определяются настоящим Кодексом и законодательными актами.
Сноска. Статья 77 с изменениями, внесенными законами РК от 15.07.1996 № 30; от 11.07.1997 № 154; от 02.03.1998 № 211; от 22.04.1998 № 221; от 16.07.1999 № 436; от 16.05.2003 № 416.
Статья 78. Уставный капитал товарищества с ограниченной ответственностью
Размер уставного капитала определяется учредителями (участниками) товарищества с ограниченной ответственностью и не может быть менее минимального размера, установленного законодательными актами Республики Казахстан.
Минимальный размер уставного капитала микрофинансовых организаций, созданных в форме товарищества с ограниченной ответственностью, определяется законодательством Республики Казахстан о микрофинансовых организациях.
Сноска. Статья 78 в редакции Закона РК от 26.11.2012 № 57-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 79. Управление в товариществе с ограниченной ответственностью
1. Компетенция органов товарищества, а также порядок принятия ими решений или выступления от имени товарищества определяются в соответствии с настоящим Кодексом, законодательными актами и уставом товарищества.
2. К исключительной компетенции общего собрания участников товарищества с ограниченной ответственностью относится:
1) изменение устава товарищества, в том числе изменение размера его уставного капитала;
2) избрание (назначение) членов (члена) исполнительного органа и досрочное прекращение их (его) полномочий, а также принятие решения о передаче товарищества или его имущества в доверительное управление и определение условий такой передачи;
3) утверждение финансовой отчетности товарищества и распределение его чистого дохода;
4) решение о реорганизации или ликвидации товарищества; 5) избрание и досрочное прекращение полномочий наблюдательного совета и
(или) ревизионной комиссии (ревизора) товарищества, а также утверждение отчетов и заключений ревизионной комиссии (ревизора) товарищества;
6) утверждение внутренних правил, процедуры их принятия и других документов, регулирующих внутреннюю деятельность товарищества, за исключением случаев, предусмотренных законодательными актами Республики Казахстан;
7) решение об участии товарищества в иных хозяйственных товариществах, а также в некоммерческих объединениях;
8) назначение ликвидационной комиссии и утверждение ликвидационных балансов;
9) решение о принудительном выкупе доли у участника товарищества с ограниченной ответственностью в соответствии со статьей 82 настоящего Кодекса.
3. Вопросы, отнесенные к исключительной компетенции общего собрания участников товарищества, не могут быть переданы им на решение исполнительного органа товарищества.
Сноска. Статья 79 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 22.04.1998 № 221; от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 19.02.2007 № 230 ( порядок введения в действие см. ст. 2).
Статья 80. Переход доли в уставном капитале товарищества с ограниченной ответственностью к другому лицу
1. Участник товарищества с ограниченной ответственностью вправе продать или иным образом уступить свою долю в уставном капитале товарищества или ее часть по своему выбору одному или нескольким участникам данного товарищества, за исключением случаев, предусмотренных настоящим Кодексом.
2. Отчуждение участником товарищества с ограниченной ответственностью своей доли (ее части) третьим лицам допускается, если иное не предусмотрено учредительными документами товарищества либо законодательными актами.
Участники товарищества с ограниченной ответственностью пользуются преимущественным перед третьими лицами правом покупки доли или ее части, за исключением случаев, предусмотренных настоящим Кодексом и Законом Республики Казахстан "О товариществах с ограниченной и дополнительной ответственностью". Если учредительными документами или соглашением участников товарищества не предусмотрено иное, преимущественное право покупки доли (ее части) осуществляется участниками пропорционально размерам их долей в уставном капитале товарищества.
При продаже доли (ее части) с нарушением преимущественного права покупки любой участник товарищества с ограниченной ответственностью вправе в течение трех месяцев со дня продажи требовать в судебном порядке перевода на него прав и обязанностей покупателя.
3. Если в соответствии с учредительными документами товарищества с ограниченной ответственностью отчуждение доли участника (ее части) третьим лицам невозможно, а другие участники товарищества от ее покупки отказываются, товарищество обязано выплатить участнику ее действительную стоимость либо выдать ему в натуре имущество, соответствующее такой стоимости.
4. Доля участника товарищества с ограниченной ответственностью может быть отчуждена до полной ее оплаты лишь в той части, в которой она уже оплачена.
5. В случае приобретения доли участника (ее части) самим товариществом с ограниченной ответственностью оно обязано реализовать ее другим участникам или третьим лицам в сроки и в порядке, предусмотренные законодательными актами и учредительными документами товарищества, либо уменьшить свой уставный капитал. В течение этого периода распределение чистого дохода, а также голосование в высшем органе производится без учета приобретенной товариществом с ограниченной ответственностью доли.
6. Доли в уставном капитале товарищества с ограниченной ответственностью переходят к наследникам граждан и к правопреемникам юридических лиц, являвшихся участниками товарищества, если учредительными документами товарищества не предусмотрено, что такой переход допускается только с
согласия остальных участников товарищества. Отказ в согласии на переход доли влечет обязанность товарищества выплатить наследникам (правопреемникам) участника ее действительную стоимость или выдать им в натуре имущество на такую стоимость в порядке и на условиях, предусмотренных законодательными актами и учредительными документами товарищества.
Законодательными актами могут быть предусмотрены особенности перехода доли к правопреемникам юридических лиц.
Сноска. Статья 80 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 07.08.2007 № 321 (вводится в действие со дня его официального опубликования); от 21.04.2016 № 504-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 81. Дополнительные взносы участников товарищества с ограниченной ответственностью
Если уставом товарищества с ограниченной ответственностью не предусмотрено иное, общее собрание участников может принять решение о внесении участниками дополнительных взносов в имущество товарищества. Решение принимается большинством в три четверти голосов всех участников товарищества.
Сноска. Статья 81 в редакции Закона РК от 22.04.1998 № 221.
Статья 82. Принудительный выкуп доли у участника товарищества с ограниченной ответственностью
При нарушении участником товарищества с ограниченной ответственностью своих обязанностей перед товариществом, установленных законодательными актами или учредительными документами, товарищество в соответствии с решением общего собрания вправе по суду требовать принудительного выкупа доли такого участника в порядке, установленном Законом Республики Казахстан "О товариществах с ограниченной и дополнительной ответственностью.
Сноска. Статья 82 в редакции Закона РК от 02.03.1998 № 211; с изменениями, внесенными Законом РК от 21.01.2019 № 217-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 83. Обращение взыскания на долю участника в товариществе с ограниченной ответственностью
При недостаточности имущества участника товарищества с ограниченной ответственностью для покрытия личных долгов кредиторы могут потребовать в установленном порядке выделения доли участника-должника.
Сноска. Статья 83 с изменениями, внесенными Законом РК от 02.03.1998 № 211.
5. Товарищество с дополнительной ответственностью
Статья 84. Основные положения о товариществе с дополнительной ответственностью
1. Товариществом с дополнительной ответственностью признается товарищество, участники которого отвечают по его обязательствам своими вкладами в уставный капитал, а при недостаточности этих сумм - дополнительно принадлежащим им имуществом в размере, кратном внесенным ими вкладам.
2. Предельный размер ответственности участников предусматривается в уставе.
При банкротстве одного из участников его ответственность по обязательствам товарищества распределяется между остальными участниками пропорционально их вкладам, если иной порядок распределения ответственности не предусмотрен учредительными документами.
3. К товариществу с дополнительной ответственностью применяются правила настоящего Кодекса о товариществе с ограниченной ответственностью, поскольку иное не предусмотрено настоящей статьей.
Сноска. Статья 84 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 22.04.1998 № 221.
III. Акционерное общество
Сноска. Подраздел 6 считать частью III - Законом РК от 10 июля 1998 г. № 282.
Статья 85. Понятие акционерного общества
1. Акционерным обществом признается юридическое лицо, выпускающее акции с целью привлечения средств для осуществления своей деятельности. Акционеры акционерного общества не отвечают по его обязательствам и несут риск убытков, связанных с деятельностью общества, в пределах стоимости принадлежащих им акций, за исключением случаев, предусмотренных законодательными актами.
2. Акционерное общество обладает имуществом, обособленным от имущества своих участников, несет ответственность по своим обязательствам в пределах своего имущества и не отвечает по обязательствам своих участников.
3. Акционерное общество может быть создано одним лицом или состоять из одного лица в случае приобретения одним акционером всех акций общества, если иное не предусмотрено законодательными актами.
4. Правовое положение акционерного общества, права и обязанности акционеров определяются в соответствии с настоящим Кодексом, законодательными актами. Особенности правового положения акционерных обществ, созданных путем приватизации государственных предприятий или контрольный пакет акций которых принадлежит государству, определяются законодательными актами Республики Казахстан.
5. В случаях, предусмотренных законодательством, в организационно-правовой форме акционерного общества могут создаваться некоммерческие организации.
Сноска. Статья 85 с изменениями, внесенными законами РК от 19.06.1997 № 134; от 11.07.1997 № 154; от 02.03.1998 № 211; от 10.07.1998 № 282; от 13.10.2003 № 486; от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 86. Открытые и закрытые акционерные общества
Сноска. Статья 86 исключена Законом РК от 16.05.2003 № 416.
Статья 87. Учредительные документы акционерного общества
1. Учредительными документами акционерного общества являются учредительный договор (решение единственного учредителя) и устав.
Учредительные документы акционерного общества должны содержать сведения, определенные настоящим Кодексом и иными законодательными актами Республики Казахстан.
Учредительные документы акционерного общества подлежат нотариальному удостоверению.
2. Действие учредительного договора (решения единственного учредителя) прекращается со дня государственной регистрации выпуска объявленных акций.
3. Порядок утверждения устава акционерного общества устанавливается законодательными актами Республики Казахстан.
Сноска. Статья 87 в редакции Закона РК от 16.05.2003 № 416.
Статья 88. Уставный капитал акционерного общества
Минимальный размер и порядок формирования уставного капитала акционерного общества, а также порядок его увеличения определяются законодательными актами Республики Казахстан.
Сноска. Статья 88 в редакции Закона РК от 16.05.2003 № 416; с изменениями, внесенными Законом РК от 08.07.2005 № 72 (порядок введения в действие см. ст .2).
Статья 89. Увеличение объявленного и выпущенного (оплаченного) уставного капитала
Сноска. Статья 89 исключена Законом РК от 16.05.2003 № 416.
Статья 90. Уменьшение объявленного и выпущенного (оплаченного) уставного капитала
Сноска. Статья 90 исключена Законом РК от 16.05.2003 № 416.
Статья 91. Выпуск и размещение ценных бумаг
1. Виды ценных бумаг, выпускаемых акционерным обществом, определяются законодательными актами.
2. Порядок государственной регистрации выпуска объявленных акций и их размещения определяется в соответствии с законодательными актами Республики Казахстан.
3. Акционерное общество вправе выпускать обеспеченные облигации и облигации без обеспечения, за исключением случаев, предусмотренных законодательными актами Республики Казахстан. Акционерное общество вправе выпускать купонные и дисконтные облигации. Условия и порядок выпуска облигаций определяются законодательством о рынке ценных бумаг.
4. Форма, способ и порядок выплаты дохода по ценным бумагам определяются уставом акционерного общества или проспектами выпуска ценных бумаг с учетом особенностей, предусмотренных законодательными актами.
5. Акционерное общество не вправе выплачивать дивиденды по акциям общества:
1) при отрицательном размере собственного капитала или если размер собственного капитала общества станет отрицательным в результате выплаты дивидендов по его акциям;
2) если оно отвечает признакам неплатежеспособности или несостоятельности в соответствии с законодательством Республики Казахстан о
реабилитации и банкротстве либо указанные признаки появятся у общества в результате выплаты дивидендов по его акциям.
Законодательными актами Республики Казахстан могут быть предусмотрены и иные основания, запрещающие выплату дивидендов по акциям акционерным обществом.
6. Акционерное общество вправе выпускать производные ценные бумаги, опционы и конвертируемые ценные бумаги в порядке, определяемом законодательством.
Сноска. Статья 91 в редакции Закона РК от 10.07.1998 № 282; с изменениями, внесенными законами РК от 16.05.2003 № 416; от 20.02.2006 № 127 (порядок введения в действие см. ст.2); от 19.02.2007 № 230 (порядок введения в действие см. ст.2); от 15.07.2010 № 338-IV (порядок введения в действие см. ст.2); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 92. Управление акционерным обществом
1. Высшим органом акционерного общества является общее собрание его акционеров.
2. Исключительная компетенция общего собрания акционеров определяется законодательными актами.
3. Решение вопросов, отнесенных к исключительной компетенции общего собрания акционеров, не может быть передано иным органам акционерного общества.
4. В акционерном обществе создается совет директоров, который осуществляет общее руководство деятельностью общества, за исключением решения вопросов, отнесенных настоящим Кодексом, законодательными актами и уставом акционерного общества к исключительной компетенции общего собрания акционеров. Вопросы, отнесенные настоящим Кодексом, законодательными актами и уставом акционерного общества к исключительной компетенции совета директоров, не могут быть переданы для решения исполнительному органу акционерного общества.
5. Исполнительный орган акционерного общества может быть коллегиальным (правление) или единоличным (директор, генеральный директор, президент). Он осуществляет текущее руководство деятельностью акционерного общества и подотчетен совету директоров и общему собранию акционеров.
К компетенции исполнительного органа акционерного общества относится решение всех вопросов, не составляющих исключительную компетенцию других
органов общества, определенную законодательством или учредительными документами.
6. В акционерном обществе могут быть созданы иные органы в соответствии с законодательными актами.
6-1. В случаях признания акционерного общества банкротом или применения реабилитационной процедуры и назначения временного либо банкротного или реабилитационного управляющего в установленном законом порядке все полномочия по управлению им переходят соответственно к временному либо банкротному или реабилитационному управляющему.
7. Компетенция органов акционерного общества, а также порядок принятия ими решений и выступления от имени общества определяются в соответствии с настоящим Кодексом, законодательством и учредительными документами.
8. (исключен) Сноска. Статья 92 с изменениями, внесенными законами РК от 11.07.1997 №
154; от 02.03.1998 № 211; от 10.07.1998 № 282; от 16.05.2003 № 416; от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 93. Реорганизация и ликвидация акционерного общества
1. Акционерное общество может быть реорганизовано или ликвидировано по решению собрания акционеров. Иные основания и порядок реорганизации и ликвидации акционерного общества определяются настоящим Кодексом и иными законодательными актами.
2. Акционерное общество вправе преобразоваться в хозяйственное товарищество, производственный кооператив или автономную организацию образования в соответствии с Законом Республики Казахстан "О статусе " Назарбаев Университет", "Назарбаев Интеллектуальные школы" и "Назарбаев Фонд", а также в автономный кластерный фонд в соответствии с Законом Республики Казахстан "Об инновационном кластере "Парк инновационных технологий".
Сноска. Статья 93 в редакции Закона РК от 15.07.1996 № 30; с изменениями, внесенными законами РК от 16.05.2003 № 416; от 19.01.2011 № 395-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 10.06.2014 № 208-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
IV. Дочерняя организация и зависимое акционерное общество
Сноска. Подраздел седьмой считать частью IV - Законом РК от 10.07.1998 № 282.
Статья 94. Дочерняя организация
1. Дочерней организацией является юридическое лицо, решения которого может определять другое юридическое лицо (далее – основная организация) на основании наличия преобладающей доли участия в уставном капитале либо заключенного между ними договора, либо иным образом.
2. Дочерняя организация не отвечает по долгам своей основной организации. Основная организация, которая по договору с дочерней организацией (либо
иным образом) имеет право давать последней обязательные для нее указания, отвечает субсидиарно с дочерней организацией по сделкам, заключенным последней во исполнение таких указаний.
В случае банкротства дочерней организации по вине основной организации последняя несет субсидиарную ответственность по ее долгам.
Дочерняя организация не может приобретать акции основной организации, за исключением финансовых организаций, имеющих право владеть акциями основной организации в размере не более десяти процентов от голосующих акций такой организации.
3. Участники дочерней организации вправе требовать возмещения основной организацией убытков, причиненных по ее вине дочерней организации, если иное не установлено законодательными актами.
4. Особенности положения дочерних организаций, не предусмотренные настоящей статьей, определяются законодательными актами.
Сноска. Статья 94 в редакции Закона РК от 10.07.1998 № 282; с изменениями, внесенными законами РК от 16.05.2003 № 416; от 22.04.2015 № 308-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 95. Зависимое акционерное общество
1. Акционерное общество признается зависимым, если другое (участвующее, преобладающее) юридическое лицо имеет более двадцати процентов его голосующих акций.
2. Исключен Законом РК от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
3. Исключен Законом РК от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
4. Особенности положения зависимых и взаимно участвующих в уставных капиталах друг друга акционерных обществ, не предусмотренные настоящей статьей, определяются законодательными актами.
5. Участвующее (преобладающее) юридическое лицо обязано в порядке, предусмотренном законами, публиковать информацию о приобретении им более двадцати процентов голосующих акций акционерного общества.
Сноска. Статья 95 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 10.07.1998 № 282; от 16.05.2003 № 416; от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
V. Производственный кооператив
Статья 96. Общие положения о производственном кооперативе
1. Производственным кооперативом признается добровольное объединение граждан на основе членства для совместной предпринимательской деятельности, основанной на их личном трудовом участии и объединении его членами имущественных взносов.
2. Членов кооператива должно быть не менее двух. 3. Члены производственного кооператива несут по обязательствам
кооператива дополнительную (субсидиарную) ответственность в размерах и порядке, предусмотренных Законом о производственном кооперативе.
4. Правовое положение производственного кооператива и его членов определяется в соответствии с настоящим Кодексом, законодательными актами.
5. Правовое положение сельскохозяйственного кооператива, образуемого в форме производственного кооператива, а также правовое положение, права и обязанности его членов определяются настоящим Кодексом и иными законами Республики Казахстан, за исключением случаев, предусмотренных Законом Республики Казахстан "О сельскохозяйственных кооперативах".
Сноска. Статья 96 c изменениями, внесенными законами РК от 02.03.1998 № 211; от 29.10.2015 № 373-V (вводится в действие с 01.01.2016).
Статья 97. Устав производственного кооператива
Устав производственного кооператива должен содержать помимо сведений, указанных в пункте 5 статьи 41 настоящего Кодекса, условия о размере пая членов кооператива; о составе и порядке внесения взносов членами кооператива и их ответственности за нарушение обязательства по внесению взноса; о характере и порядке трудового участия его членов в деятельности кооператива и их ответственности за нарушение обязательства по личному трудовому участию; о порядке распределения чистого дохода кооператива; о составе и компетенции органов управления кооперативом и порядке принятия ими решений, в том числе о вопросах, решения по которым принимаются единогласно или квалифицированным большинством голосов.
Сноска. Статья 97 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211.
Статья 98. Имущество производственного кооператива
1. Имущество, находящееся в собственности производственного кооператива, делится на паи его членов пропорционально их взносам, если уставом кооператива не предусмотрено иное.
2. Чистый доход кооператива распределяется между его членами в соответствии с их трудовым участием, если иной порядок не предусмотрен уставом кооператива.
3. В случае ликвидации производственного кооператива или выхода из него члена кооператива последний имеет право на выдел своего пая.
Сноска. Статья 98 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211.
Статья 99. Управление производственным кооперативом
1. Высшим органом производственного кооператива является общее собрание его членов.
В производственном кооперативе может быть создан наблюдательный совет, который осуществляет контроль за деятельностью исполнительного органа кооператива. Члены наблюдательного совета не вправе действовать от имени производственного кооператива.
Исполнительным органом кооператива является правление или председатель кооператива.
Исполнительный орган осуществляет текущее руководство деятельностью кооператива и подотчетен наблюдательному совету и общему собранию членов кооператива.
Членами наблюдательного совета и правления производственного кооператива могут быть только члены кооператива. Член кооператива не может одновременно быть членом наблюдательного совета и членом правления ( председателем кооператива).
2. Компетенция органов управления производственным кооперативом, а также порядок принятия ими решений и выступления от имени кооператива определяются законодательными актами и учредительными документами.
3. К исключительной компетенции общего собрания членов производственного кооператива относится:
1) изменение устава кооператива; 2) образование исполнительного органа, ревизионных органов и
наблюдательного совета и отзыв их членов; 3) прием и исключение членов кооператива;
4) утверждение финансовой отчетности кооператива и распределение его чистого дохода;
5) решение о реорганизации и ликвидации кооператива. Законодательными актами и учредительными документами к
исключительной компетенции общего собрания может быть также отнесено решение иных вопросов.
Вопросы, отнесенные к исключительной компетенции общего собрания или наблюдательного совета кооператива, не могут быть переданы ими на решение исполнительного органа кооператива.
3-1. В случаях признания производственного кооператива банкротом или применения реабилитационной процедуры и назначения временного либо банкротного или реабилитационного управляющего в установленном законом порядке все полномочия по управлению им переходят соответственно к временному либо банкротному или реабилитационному управляющему.
4. Член кооператива имеет один голос при принятии решений общим собранием.
Сноска. Статья 99 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 100. Прекращение членства в производственном кооперативе
1. Член производственного кооператива вправе по своему усмотрению выйти из кооператива. В этом случае ему должен быть выплачен или выдан его пай, а также осуществлены другие выплаты, предусмотренные уставом.
Выдача пая и другого имущества выходящему члену кооператива производится по окончании отчетного периода и утверждении финансовой отчетности кооператива.
2. Член производственного кооператива может быть исключен из кооператива по решению общего собрания в случае неисполнения или ненадлежащего исполнения обязанностей, возложенных на него уставом кооператива, а также в других случаях, предусмотренных законодательными актами и учредительными документами.
Исключение из членов производственного кооператива может быть обжаловано в суд.
Член производственного кооператива может быть исключен из него по решению общего собрания в связи с членством в аналогичном кооперативе.
Член производственного кооператива, исключенный из него, имеет право на получение пая и других выплат, предусмотренных уставом кооператива, в соответствии с пунктом 1 настоящей статьи.
3. Член производственного кооператива вправе передать свой пай или его часть другому члену кооператива, если иное не предусмотрено настоящим Кодексом, иными законодательными актами и учредительными документами.
Передача пая (его части) гражданину, не являющемуся членом производственного кооператива, допускается лишь с согласия кооператива, если иное не предусмотрено законодательными актами. В этом случае другие члены кооператива пользуются преимущественным правом покупки такого пая (его части), за исключением случаев, предусмотренных настоящим Кодексом.
4. В случае смерти члена производственного кооператива его наследники могут быть приняты в члены кооператива, если иное не предусмотрено уставом кооператива. При отказе наследника умершего члена кооператива от вступления в кооператив либо отказе кооператива от приема наследника ему выплачивается доля в имуществе, пропорциональная паю умершего члена кооператива, а также причитающиеся умершему часть чистого дохода кооператива и вознаграждение за личное трудовое участие в деятельности кооператива.
5. Обращение взыскания на пай члена производственного кооператива по его личным долгам допускается лишь при недостатке иного его имущества для
покрытия таких долгов в порядке, предусмотренном законодательными актами и учредительными документами кооператива.
Сноска. Статья 100 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 07.08.2007 N 321 (вводится в действие со дня его официального опубликования).
Статья 101. Реорганизация и ликвидация производственного кооператива
1. Производственный кооператив может быть добровольно реорганизован или ликвидирован по решению общего собрания его членов.
Иные основания и порядок реорганизации и ликвидации производственного кооператива определяются настоящим Кодексом и другими законодательными актами.
2. Производственный кооператив по единогласному решению его членов может преобразоваться в хозяйственное товарищество.
VI. Государственное предприятие
Статья 102. Основные положения о государственном предприятии
1. К государственным относятся предприятия: 1) основанные на праве хозяйственного ведения; 2) основанные на праве оперативного управления (казенное предприятие). 2. Имущество государственного предприятия является неделимым и не может
быть распределено по вкладам (долям, паям), в том числе между работниками предприятия.
3. Фирменное наименование государственных предприятий должно содержать указание на собственника его имущества.
Примечание РЦПИ! Данная редакция пункта 4 действует с 01.01.2018 для городов районного
значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
4. Государственное предприятие создается, ликвидируется и реорганизуется в соответствии с законами Республики Казахстан.
Примечание РЦПИ! Данная редакция части первой пункта 5 действует с 01.01.2018 для городов
районного значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
5. Органом государственного предприятия является руководитель, который назначается в порядке, определенном законами Республики Казахстан.
В случаях, предусмотренных законодательным актом Республики Казахстан о государственном имуществе, в качестве органа государственного предприятия, помимо руководителя государственного предприятия, может выступать иной орган.
5-1. В случаях признания государственного предприятия банкротом или применения процедуры реабилитации и назначения временного либо банкротного или реабилитационного управляющего в установленном законом порядке все полномочия по управлению им переходят соответственно к временному либо банкротному или реабилитационному управляющему.
6. (исключен) 7. Правовое положение государственного предприятия определяется
настоящим Кодексом и иными законодательными актами. Сноска. Статья 102 с изменениями, внесенными законами РК от 02.03.1998 №
211; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 11.07.2017 № 90-VI (порядок введения в действие см. пп.1) п .1 ст.2).
Статья 103. Предприятие, основанное на праве хозяйственного ведения
1. Учредительным документом предприятия, основанного на праве хозяйственного ведения, является его устав, утверждаемый учредителем.
2. Предприятие, основанное на праве хозяйственного ведения, отвечает по своим обязательствам всем принадлежащим ему имуществом.
Предприятие, основанное на праве хозяйственного ведения, не несет ответственности по обязательствам государства.
Государство не отвечает по обязательствам предприятия, основанного на праве хозяйственного ведения, за исключением случаев, предусмотренных настоящим Кодексом и иными законодательными актами.
Сноска. Статья 103 с изменениями, внесенными Законом РК от 02.03.1998 N 211.
Статья 104. Казенное предприятие
1. Казенным является предприятие, обладающее государственным имуществом на праве оперативного управления.
Примечание РЦПИ! Данная редакция пункта 2 действует с 01.01.2018 для городов районного
значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
2. Казенное предприятие создается по решению Правительства Республики Казахстан или местного исполнительного органа либо аппарата акима города районного значения, села, поселка, сельского округа в соответствии с законами Республики Казахстан.
3. Учредительным документом казенного предприятия является его устав, утверждаемый учредителем.
4. Фирменное наименование предприятия, основанного на праве оперативного управления, должно содержать указание на то, что предприятие является казенным.
5. Хозяйственная деятельность казенного предприятия определяется его целями и задачами, зафиксированными в уставе.
6. Республика Казахстан или административно-территориальная единица несут субсидиарную ответственность по обязательствам казенного предприятия. По договорным обязательствам ответственность наступает в порядке, установленном законодательным актом Республики Казахстан о государственном имуществе.
Сноска. Статья 104 с изменениями, внесенными законами РК от 16.12.1998 N 320; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 11.07.2017 № 90-VI (порядок введения в действие см. пп.1) п.1 ст.2).
VII. Некоммерческие организации
Статья 105. Учреждение
1. Учреждением признается организация, созданная и финансируемая его учредителем, если иное не предусмотрено законодательными актами Республики Казахстан, для осуществления управленческих, социально-культурных или иных функций некоммерческого характера.
Примечание РЦПИ! Данная редакция пункта 2 действует с 01.01.2018 для городов районного
значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
2. Государственным учреждением признается учреждение, создаваемое государством в соответствии с Конституцией Республики Казахстан и законами Республики Казахстан или правовыми актами Президента Республики Казахстан, Правительства Республики Казахстан и местных исполнительных органов областей, городов республиканского значения, столицы, районов, городов областного значения, а также аппаратов акимов городов районного значения, сел, поселков, сельских округов и содержащееся только за счет бюджета или бюджета (сметы расходов) Национального Банка Республики Казахстан, если дополнительные источники финансирования не установлены законами Республики Казахстан.
3. Принятие государственным учреждением договорных обязательств осуществляется в соответствии с Бюджетным кодексом Республики Казахстан.
4. Правовое положение учреждений определяется настоящим Кодексом, законодательным актом Республики Казахстан о государственном имуществе и иными законодательными актами Республики Казахстан.
Сноска. Статья 105 в редакции Закона РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); с изменением, внесенным Законом РК от 11.07.2017 № 90-VI (порядок введения в действие см. пп.1) п.1 ст.2).
Статья 106. Общественное объединение
1. Общественными объединениями в Республике Казахстан признаются политические партии, профессиональные союзы и другие объединения граждан, созданные на добровольной основе для достижения ими общих целей, не противоречащих законодательству, если иное не предусмотрено законами.
Особенности создания общественных объединений физических лиц, осуществляющих деятельность на финансовом рынке, и участия в них устанавливаются законодательными актами Республики Казахстан.
Участники (члены) общественных объединений не имеют прав на переданное ими этим объединениям имущество, в том числе на членские взносы. Они не отвечают по обязательствам общественных объединений, в которых участвуют в качестве их членов, а указанные объединения не отвечают по обязательствам своих членов.
2. - 6. Исключены Законом РК от 02.03.1998 № 211. 7. Имущество общественного объединения, ликвидированного по решению
съезда (конференции) или общего собрания, направляется на цели, предусмотренные его уставом.
Имущество общественного объединения, ликвидированного по решению суда, используется в соответствии с настоящим Кодексом или иными законодательными актами.
8. Правовое положение общественного объединения определяется в соответствии с настоящим Кодексом законодательными актами.
Сноска. Статья 106 с изменениями, внесенными Указом Президента РК, имеющим силу Закона, от 05.10.1995 № 2489; законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 15.07.2010 № 338-IV (порядок введения в действие см. ст .2); от 12.01.2012 № 537-IV (вводится в действие по истечении 10 календарных дней после его первого официального опубликования).
Статья 107. Фонд
1. Фондом признается не имеющая членства некоммерческая организация, учрежденная гражданами и (или) юридическими лицами на основе добровольных имущественных взносов, преследующая социальные, благотворительные, культурные, образовательные и иные общественно полезные цели.
2. Фонд является юридическим лицом, в гражданском обороте представлен органами фонда, имеет самостоятельный баланс и банковский счет.
3. Имущество, переданное фонду его учредителями, является собственностью фонда.
Учредители фонда не имеют имущественных прав на имущество фонда. 4. Финансовым источником фонда являются деньги, а также другое
имущество учредителей, добровольные пожертвования и иные законные поступления.
5. Порядок управления фондом и порядок формирования его органов определяются его уставом, утверждаемым учредителями.
Устав фонда, помимо сведений, содержащихся в пункте 5 статьи 41 настоящего Кодекса, должен содержать указания об органах фонда, о порядке назначения должностных лиц фонда и их освобождения, судьбе имущества фонда в случае его ликвидации.
6. Фонд обязан ежегодно публиковать отчеты об использовании своего имущества в официальных печатных изданиях.
7. По решению суда фонд может быть ликвидирован в случаях: 1) если имущества фонда недостаточно для осуществления его целей и
вероятность получения необходимого имущества нереальна; 2) если цели фонда не могут быть достигнуты, а необходимые изменения
целей фонда не могут быть произведены; 3) в случае уклонения фонда в его деятельности от целей, предусмотренных
уставом; 4) в других случаях, предусмотренных законодательными актами или
учредительными документами. 8. Имущество, оставшееся после ликвидации фонда, направляется на цели,
предусмотренные его уставом. Сноска. Статья 107 в редакции Закона РК от 27.04.2012 № 15-V (вводится в
действие по истечении десяти календарных дней после его первого официального опубликования); с изменениями, внесенными Законом РК от 16.11.2015 № 403-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 108. Потребительский кооператив
1. Потребительским кооперативом признается добровольное объединение граждан на основе членства для удовлетворения материальных и иных потребностей участников, осуществляемое путем объединения его членами имущественных (паевых) взносов.
В случаях, предусмотренных законодательными актами, в потребительский кооператив могут вступать юридические лица.
2. Члены потребительского кооператива обязаны в течение трех месяцев после утверждения ежегодного баланса покрыть образовавшиеся убытки путем дополнительных взносов. В случае невыполнения этой обязанности кооператив может быть ликвидирован в судебном порядке по требованию кредиторов.
Члены потребительского кооператива солидарно несут субсидиарную ответственность по его обязательствам в пределах невнесенной части дополнительного взноса членов кооператива.
3. Устав потребительского кооператива должен содержать помимо сведений, указанных в пункте 5 статьи 41 настоящего Кодекса, условия о размере паев членов кооператива; о составе и порядке внесения паев членами кооператива и их ответственности за нарушение обязательства по внесению пая; о составе и компетенции органов управления кооперативом и порядке принятия ими решений, в том числе о вопросах, решения по которым принимаются единогласно или квалифицированным большинством голосов; о порядке покрытия членами кооператива понесенных им убытков.
4. Доходы, полученные потребительским кооперативом, не могут распределяться между его членами и направляются на уставные цели.
5. В случае ликвидации потребительского кооператива или выхода из него члена кооператива он имеет право на выделение своей доли в имуществе потребительского кооператива, пропорциональной его паю.
В случае смерти члена потребительского кооператива его наследники имеют первоочередное право на принятие в члены кооператива, если иное не предусмотрено уставом кооператива. В последнем случае кооператив выплачивает наследникам долю в имуществе потребительского кооператива, пропорциональную его паю.
6. Правовое положение потребительского кооператива, а также права и обязанности его членов определяются в соответствии с настоящим Кодексом законодательными актами.
7. Исключен Законом РК от 29.10.2015 № 373-V (вводится в действие с 01.01.2016).
8. Особенности деятельности потребительских кооперативов - обществ взаимного страхования определяются законодательными актами Республики Казахстан.
Сноска. Пункт 1 статьи 108 дополнен абзацем вторым - Закон РК от 2 марта 1998 г. № 211; с изменениями, внесенными законами РК от 5 июля 2006 года № 164 (порядок введения в действие см. ст.2); от 29.10.2015 № 373-V (вводится в действие с 01.01.2016).
Статья 109. Религиозное объединение
1. Религиозным объединением признается добровольное объединение граждан, в установленном законодательными актами порядке объединившихся на основе общности их интересов для удовлетворения духовных потребностей.
2. (исключен) 3. Религиозные объединения в Республике Казахстан, имеющие руководящие
центры вне пределов республики, подлежат регистрации в органах юстиции. Уставы (положения) руководящих центров могут быть положены в основу уставов (положений) таких религиозных объединений, если они не противоречат законодательству Республики Казахстан.
4 - 8. (исключены) 9. Религиозное объединение имеет право собственности на имущество,
приобретенное или созданное им за счет собственных средств, пожертвованное гражданами, организациями или переданное государством и приобретенное по другим основаниям, не противоречащим законодательным актам.
10. Участники (члены) религиозного объединения не сохраняют прав на переданное ими этой организации имущество, в том числе на членские взносы. Они не отвечают по обязательствам религиозного объединения, а религиозное объединение не отвечает по обязательствам своих членов.
11. Особенности правового положения религиозного объединения определяются в соответствии с настоящим Кодексом, законодательными актами Республики Казахстан.
Сноска. Статья 109 с изменениями, внесенными Указом Президента РК, имеющим силу Закона, от 05.10.1995 № 2489. Пункты 2, 4-8 исключены Законом РК от 02.03.1998 № 211.
Статья 110. Объединение индивидуальных предпринимателей и (или) юридических лиц в форме ассоциации (союза)
1. Индивидуальные предприниматели и (или) юридические лица в целях координации их предпринимательской деятельности, а также представления и защиты общих интересов могут создавать ассоциации (союзы).
Особенности создания ассоциаций (союзов) юридических лиц, осуществляющих деятельность на финансовом рынке, и участия в них устанавливаются законодательными актами Республики Казахстан.
2. Общественные объединения и иные некоммерческие организации, в том числе учреждения, могут добровольно объединяться в ассоциации (союзы) этих организаций.
3. Ассоциация (союз) является некоммерческой организацией. 4. Члены ассоциации (союза) сохраняют свою самостоятельность. 5. Ассоциация (союз) не отвечает по обязательствам своих членов, если иное
не предусмотрено законами Республики Казахстан и учредительными документами. Члены ассоциации (союза) несут субсидиарную ответственность
по ее обязательствам в размере и порядке, предусмотренным учредительными документами ассоциации (союза), если иное не установлено законами Республики Казахстан.
Сноска. Статья 110 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 16.05.2003 N 416; от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 12.11.2015 № 391-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования).
Параграф 3. УЧАСТИЕ ГОСУДАРСТВА И АДМИНИСТРАТИВНО-ТЕРРИТОРИАЛЬНОЙ ЕДИНИЦЫ В ОТНОШЕНИЯХ, РЕГУЛИРУЕМЫХ ГРАЖДАНСКИМ ЗАКОНОДАТЕЛЬСТВОМ
Статья 111. Участие Республики Казахстан в гражданских правоотношениях
1. Республика Казахстан выступает в отношениях, регулируемых гражданским законодательством, на равных началах с иными участниками этих отношений.
2. От имени Республики Казахстан могут своими действиями приобретать и осуществлять имущественные и личные неимущественные права и обязанности, выступать в суде государственные органы Республики Казахстан в рамках их компетенции, установленной законодательными актами Республики Казахстан, положениями или иными актами, определяющими статус этих органов.
В случаях и в порядке, предусмотренных законодательством Республики Казахстан, по специальному поручению Республики Казахстан от ее имени могут выступать иные государственные органы, юридические лица и граждане.
3. Гражданско-правовые споры с участием Республики Казахстан разрешаются судами.
Сноска. Статья 111 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 112. Участие административно-территориальной единицы в гражданско-правовых отношениях
1. Административно-территориальная единица выступает в отношениях, регулируемых гражданским законодательством, на равных началах с иными участниками этих отношений.
Примечание РЦПИ! Данная редакция части первой пункта 2 действует с 01.01.2018 для городов
районного значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
2. От имени административно-территориальной единицы могут своими действиями приобретать и осуществлять имущественные и личные неимущественные права и обязанности, выступать в суде местные представительные и исполнительные органы, а также аппараты акимов городов районного значения, сел, поселков, сельских округов в рамках их компетенции, установленной законами Республики Казахстан, положениями или иными актами , определяющими статус этих органов.
В случаях и в порядке, предусмотренных законодательством, по специальному поручению от имени административно-территориальной единицы могут выступать местные государственные органы, юридические лица и граждане.
3. В случаях, определенных законодательством, административно-территориальная единица может выступать в гражданских правоотношениях от имени государства.
4. На административно-территориальную единицу и ее органы распространяются положения настоящего Кодекса об участии соответственно государства и его органов в отношениях, регулируемых гражданским законодательством, если иное не вытекает из законодательства.
5. Гражданско-правовые споры с участием административно-территориальной единицы разрешаются судами.
Сноска. Статья 112 с изменениями, внесенными Законом РК от 11.07.2017 № 90-VI (порядок введения в действие см. пп.1) п.1 ст.2).
Статья 113. Обращение взыскания по обязательствам Республики Казахстан и административно-территориальной единицы
1. Республика Казахстан отвечает по своим обязательствам имуществом государственной казны, а административно-территориальная единица отвечает по своим обязательствам имуществом местной казны.
2. Республика Казахстан и административно-территориальная единица не отвечают по обязательствам друг друга, а также по обязательствам граждан и
юридических лиц, а граждане и юридические лица не отвечают по обязательствам Республики Казахстан и административно-территориальной единицы, кроме случаев, предусмотренных настоящим Кодексом и законодательными актами.
Статья 114. Применение к государству и административно-территориальной единице норм о юридических лицах
К государству и административно-территориальным единицам применяются нормы, определяющие участие юридических лиц в отношениях, регулируемых гражданским законодательством, если иное не вытекает из законодательных актов.
Глава 3. Объекты гражданских прав Параграф 1. Общие положения
Статья 115. Виды объектов гражданских прав
1. Объектами гражданских прав могут быть имущественные и личные неимущественные блага и права.
2. К имущественным благам и правам (имуществу) относятся: вещи, деньги, в том числе иностранная валюта, финансовые инструменты, работы, услуги, объективированные результаты творческой интеллектуальной деятельности, фирменные наименования, товарные знаки и иные средства индивидуализации изделий, имущественные права и другое имущество.
2-1. К деньгам и правам (требованиям) по денежному обязательству (правам требования по уплате денег) применяется соответственно правовой режим вещей или имущественных прав (требований), если иное не предусмотрено настоящим Кодексом, иными законодательными актами Республики Казахстан или не вытекает из существа обязательства.
3. К личным неимущественным благам и правам относятся: жизнь, здоровье, достоинство личности, честь, доброе имя, деловая репутация, неприкосновенность частной жизни, личная и семейная тайна, право на имя, право на авторство, право на неприкосновенность произведения и другие нематериальные блага и права.
Сноска. Статья 115 с изменениями, внесенными законами РК от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 10.12.2008 N 101-IV (вводится в действие с 01.01.2009).
Статья 116. Оборотоспособность объектов гражданских прав
1. Объекты гражданских прав могут свободно отчуждаться или переходить от одного лица к другому в порядке универсального правопреемства (наследование, реорганизация юридического лица) либо иным способом, если они не изъяты из оборота или не ограничены в обороте.
2. Виды имущества, отчуждение которых не допускается (изъятые из оборота ), должны быть прямо указаны в законах.
3. Виды имущества, которые могут принадлежать лишь определенным участникам оборота либо приобретение или отчуждение которых допускается по специальному разрешению (ограниченно оборотоспособные), определяются законодательством.
4. Личные неимущественные блага и права неотчуждаемы и непередаваемы иным способом, за исключением случаев, установленных законодательными актами.
Сноска. Статья 116 с изменениями, внесенными Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 117. Недвижимое и движимое имущество
1. К недвижимому имуществу (недвижимые вещи, недвижимость) относятся: земельные участки, здания, сооружения, многолетние насаждения и иное имущество, прочно связанное с землей, то есть объекты, перемещение которых без несоразмерного ущерба их назначению невозможно.
Квартиры и иные жилые помещения, а также нежилые помещения, находящиеся в составе объекта кондоминиума, признаются самостоятельными объектами (видами) недвижимости, если они находятся в индивидуальной ( раздельной) собственности.
2. К недвижимым вещам приравниваются также подлежащие государственной регистрации воздушные и морские суда, суда внутреннего водного плавания, суда плавания "река-море", космические объекты, линейная часть магистральных трубопроводов. Законодательными актами к недвижимым вещам может быть отнесено и иное имущество.
Нормы настоящего Кодекса и иных законодательных актов, регулирующих отношения, связанные с недвижимыми вещами, применяются к вещам, указанным в настоящем пункте, в случае, прямо предусмотренном законодательными актами Республики Казахстан.
3. Имущество, не относящееся к недвижимости, включая деньги и ценные бумаги, признаются движимым имуществом. Регистрация прав на движимые вещи не требуется, кроме случаев, указанных в законодательных актах.
Сноска. Статья 117 в редакции Закона РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); с изменениями, внесенными Законом РК от 22.06.2012 № 21-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 118. Государственная регистрация прав на недвижимое имущество
1. Возникновение, изменение и прекращение прав (обременений прав) на недвижимое имущество подлежат государственной регистрации в случаях, предусмотренных настоящим Кодексом и Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество".
Иные объекты государственной регистрации, связанные с недвижимым имуществом, определяются Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество".
2. Права (обременения прав) на недвижимое имущество возникают, изменяются и прекращаются с момента государственной регистрации, если иное не установлено настоящим Кодексом и Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество". Если в регистрации не будет отказано, моментом государственной регистрации признается момент подачи заявления, а при электронной регистрации – момент подтверждения возникновения, изменения или прекращения прав (обременений прав) регистрирующим органом путем отправки уведомления о произведенной регистрации.
3. Орган, осуществляющий государственную регистрацию прав на недвижимое имущество, обязан по заявлению правообладателя удостоверить произведенную регистрацию совершением надписи на правоустанавливающем документе, представленном на регистрацию. В случаях, предусмотренных Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество", органом, осуществляющим регистрацию, выдается свидетельство о праве собственности (ином вещном праве) на недвижимое имущество.
4. Государственная регистрация прав на недвижимое имущество является публичной. Орган, осуществляющий регистрацию, обязан предоставлять информацию о зарегистрированных правах на недвижимое имущество любому лицу с учетом ограничений, установленных Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество".
5. Отказ в государственной регистрации права на недвижимое имущество либо необоснованное уклонение от регистрации могут быть обжалованы в суд.
6. Порядок государственной регистрации устанавливается в соответствии с настоящим Кодексом и Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество".
7. Порядок государственной регистрации гражданских воздушных судов, морских судов, судов внутреннего водного плавания, судов плавания "река-море ", космических объектов, как объектов, приравненных к недвижимости, регулируется законами Республики Казахстан в сфере использования воздушного пространства и деятельности авиации, торгового мореплавания, внутреннего водного транспорта, космической деятельности.
Сноска. Статья 118 в редакции Закона РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); с изменениями, внесенными законами РК от 06.01.2012 № 529-IV (вводится в действие по истечении 21 календарного дня после его первого официального опубликования); от 29.12.2014 № 269-V ( вводится в действие с 01.01.2015).
Статья 119. Предприятие
1. Предприятием, как объектом прав, признается имущественный комплекс, используемый для осуществления предпринимательской деятельности.
2. В состав предприятия как имущественного комплекса входят все виды имущества, предназначенные для его деятельности, включая здания, сооружения, оборудование, инвентарь, сырье, продукцию, право на земельный участок, права требования, долги, а также права на обозначения, индивидуализирующие его деятельность (фирменное наименование, товарные знаки), и другие исключительные права, если иное не предусмотрено договором.
3. Предприятие в целом или его часть могут быть объектом купли-продажи, залога, аренды и других сделок, связанных с установлением, изменением и прекращением вещных прав.
3-1. Особенности государственной регистрации прав на недвижимое имущество, входящее в состав предприятия как имущественного комплекса, устанавливаются Законом Республики Казахстан "О государственной регистрации прав на недвижимое имущество".
4. При передаче долгов в составе предприятия как имущественного комплекса права кредиторов гарантируются в порядке, предусмотренном статьей 48 настоящего Кодекса.
Сноска. Статья 119 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 120. Делимое и неделимое имущество
1. Имущество может быть делимым и неделимым. Делимое имущество - это имущество, части которого в результате раздела не
утрачивают своего назначения (функций). Неделимое имущество - это такое имущество, которое не может быть
разделено без изменения его хозяйственного назначения (функций) или не подлежит разделу в силу предписания законодательного акта.
2. Особенности неделимых вещей как объектов права определяются законодательством.
Статья 121. Сложные вещи
1. Если разнородные вещи образуют единое целое, позволяющее использовать его по назначению, определяемому существом соединения, они рассматриваются как одна вещь (сложная вещь).
2. Действие сделки, заключенной по поводу сложной вещи, распространяется на все ее составные части, если договором не установлено иное.
Статья 122. Главная вещь и принадлежность
Принадлежность, то есть вещь, предназначенная служить главной вещи и связанная с ней общим хозяйственным назначением, следует судьбе главной вещи, если законодательством или договором не установлено иное.
Статья 123. Плоды, продукция и доходы
Поступления, полученные в результате использования имущества (плоды, продукция, доходы), принадлежат лицу, использующему это имущество на законном основании, если иное не предусмотрено законодательством или договором об использовании этого имущества.
Статья 124. Животные
К животным применяются общие правила о вещах, поскольку законодательством не установлено иное.
Статья 125. Интеллектуальная собственность
1. В случаях и в порядке, установленных настоящим Кодексом и иными законодательными актами, признается исключительное право гражданина или
юридического лица на результаты интеллектуальной творческой деятельности и приравненные к ним средства индивидуализации юридического лица, продукции физического или юридического лица, выполняемых ими работ или услуг ( фирменное наименование, товарный знак, знак обслуживания и т.п.).
2. Использование результатов интеллектуальной творческой деятельности и средств индивидуализации, которые могут быть объектом исключительных прав (интеллектуальной собственности), может осуществляться третьими лицами только с согласия правообладателя, за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
Сноска. Статья 125 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 126. Служебная и коммерческая тайна
1. Гражданским законодательством защищается информация, составляющая служебную или коммерческую тайну, в случае, когда информация имеет действительную или потенциальную коммерческую ценность в силу неизвестности ее третьим лицам, к ней нет свободного доступа на законном основании и обладатель информации принимает меры к охране ее конфиденциальности.
2. Лица, незаконными методами получившие такую информацию, а также служащие вопреки трудовому договору или контрагенты вопреки гражданско-правовому договору, разгласившие служебную или коммерческую тайну, обязаны возместить причиненный ущерб.
Статья 127. Деньги (валюта)
1. Денежной единицей в Республике Казахстан является тенге. 2. Тенге является законным платежным средством, обязательным к приему по
нарицательной стоимости на всей территории Республики Казахстан. 3. Платежи на территории Республики Казахстан осуществляются в виде
наличных и безналичных расчетов. 4. Случаи, порядок и условия расчетов в иностранной валюте на территории
Республики Казахстан определяются законодательством Республики Казахстан.
Статья 128. Валютные ценности
1. Виды имущества, признаваемого валютными ценностями, и порядок сделок с ними определяются законодательными актами.
2. Право собственности на валютные ценности защищается в Республике Казахстан на общих основаниях.
Параграф 1-1. Финансовые инструменты
Сноска. Раздел 3 дополнен параграфом 1-1 в соответствии с Законом РК от 10.12.2008 N 101-IV (вводится в действие с 01.01.2009).
Статья 128-1. Финансовые инструменты
1. Финансовый инструмент – деньги, ценные бумаги, включая производные ценные бумаги, производные финансовые инструменты и другие финансовые инструменты, в результате операций с которыми одновременно возникают финансовый актив у одного лица и финансовое обязательство или долевой инструмент – у другого.
2. Финансовый актив – любой актив, который представляет собой деньги, долевой инструмент другого лица, договорное право на получение денег или иного финансового актива от другого лица или на обмен финансовых активов или финансовых обязательств с другим лицом на потенциально выгодных для себя условиях, или такой договор, расчет по которому будет или может быть произведен собственными долевыми инструментами лица и который при этом является таким производным инструментом, по которому у лица есть или может появиться обязанность получить переменное число собственных долевых инструментов, или таким производным инструментом, расчет по которому будет или может быть произведен любым иным способом, нежели путем обмена фиксированной суммы денег или иного финансового актива на фиксированное число собственных долевых инструментов лица.
3. Финансовое обязательство – любое обязательство, которое представляет собой договорную обязанность предоставить деньги или иной финансовый актив другого лица или обменять финансовые активы или финансовые обязательства с другим лицом на потенциально невыгодных для себя условиях, или такой договор, расчет по которому будет или может быть произведен собственными долевыми инструментами лица и который при этом является таким непроизводным инструментом, по которому у лица есть или может появиться обязанность предоставить переменное число собственных долевых инструментов , или таким производным инструментом, расчет по которому будет или может быть произведен любым иным способом, нежели путем обмена фиксированной суммы денег или иного финансового актива на фиксированное число собственных долевых инструментов лица.
4. Долевой инструмент - любой договор, подтверждающий право на остаточную долю в активах организации, оставшихся после вычета всех ее обязательств.
Сноска. Статья 128-1 с изменениями, внесенными Законом РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 128-2. Производные финансовые инструменты
1. Производный финансовый инструмент - договор, стоимость которого зависит от величины (включая колебание величины) базового актива договора, предусматривающий осуществление расчета по данному договору в будущем.
2. К производным финансовым инструментам относятся опционы, фьючерсы, форварды, свопы и другие производные финансовые инструменты, отвечающие данным признакам, в том числе представляющие собой комбинацию вышеперечисленных производных финансовых инструментов.
3. Базовыми активами производных финансовых инструментов являются товары, стандартизированные партии товаров, ценные бумаги, валюта, индексы, процентные ставки и другие активы, имеющие рыночную стоимость, будущее событие или обстоятельство, производные финансовые инструменты.
Статья 128-3. Опцион
1. Опцион - производный финансовый инструмент, в соответствии с которым одна сторона (продавец опциона) продает другой стороне (покупателю опциона) право купить или продать базовый актив по оговоренной цене на согласованных условиях в будущем. Продавец опциона берет на себя обязательство, а покупатель приобретает право.
2. Продавец опциона продает опцион покупателю опциона за вознаграждение , именуемое премией. Под согласованными условиями опциона понимается согласование следующих обязательных условий: вид базового актива, общая стоимость базового актива (сумма, на которую заключается опцион), цена базового актива (страйк - цена исполнения опциона), премия опциона, срок опциона (период действия опциона), вид опциона.
3. Опцион считается исполненным, если покупатель опциона реализует приобретенное им право.
Статья 128-4. Своп
Своп - производный финансовый инструмент, в соответствии с которым стороны договариваются об обмене платежами по базовым активам или базовыми активами в будущем на согласованных условиях.
Статья 128-5. Форвард
1. Форвард - производный финансовый инструмент, покупатель (или продавец) которого берет на себя обязательство по истечении определенного срока купить (или продать) базовый актив на согласованных условиях в будущем .
2. Форвард заключается на неорганизованном рынке.
Статья 128-6. Фьючерс
Фьючерс - производный финансовый инструмент, обращаемый только на организованном рынке, покупатель (или продавец) которого берет на себя обязательство по истечении определенного срока купить (или продать) базовый актив в соответствии с установленными на организованном рынке стандартными условиями.
Параграф 2. Ценные бумаги
Статья 129. Ценные бумаги
1. Ценная бумага - совокупность определенных записей и других обозначений, удостоверяющих имущественные права.
1-1. Ценные бумаги могут быть долговыми и долевыми. Долговые ценные бумаги - ценные бумаги, удостоверяющие обязательство
эмитента (должника) по выплате основной суммы долга на условиях выпуска данных ценных бумаг.
Долевая ценная бумага - ценная бумага, удостоверяющая право ее владельца на определенную долю в имуществе в случаях, предусмотренных законодательством Республики Казахстан.
2. К ценным бумагам относятся акции, облигации и иные виды ценных бумаг, определенные в соответствии с настоящим Кодексом и иными законодательными актами Республики Казахстан.
3. Ценные бумаги по форме выпуска подразделяются на: 1) документарные и бездокументарные; 2) эмиссионные и неэмиссионные; 3) именные, предъявительские и ордерные.
Документарные ценные бумаги - ценные бумаги, выпущенные в документарной форме (на бумажном или ином материальном носителе с возможностью непосредственного чтения содержания ценной бумаги без использования специальных технических средств).
Бездокументарные ценные бумаги - ценные бумаги, выпущенные в бездокументарной форме (в виде совокупности электронных записей).
Эмиссионные ценные бумаги - ценные бумаги, обладающие в пределах одного выпуска однородными признаками и реквизитами, размещаемые и обращающиеся на основании единых для данного выпуска условиях.
Неэмиссионные ценные бумаги - ценные бумаги, не соответствующие признакам, указанным в части четвертой настоящего пункта.
Именная ценная бумага - ценная бумага, подтверждающая принадлежность удостоверенных ею прав названному в ней лицу.
Предъявительская ценная бумага - ценная бумага, подтверждающая принадлежность удостоверенных ею прав предъявителю ценной бумаги.
Ордерная ценная бумага - ценная бумага, подтверждающая принадлежность удостоверенных ею прав названному в ней лицу, а в случае передачи им этих прав в порядке, предусмотренном пунктом 3 статьи 132 настоящего Кодекса, - другому лицу.
4. Настоящим Кодексом и иными законодательными актами Республики Казахстан может быть исключена возможность выпуска определенного вида ценных бумаг в той или иной форме.
Сноска. Статья 129 в редакции Закона РК от 16 мая 2003 г. N 416; с изменениями, внесенными Законом РК от 10.12.2008 N 101-IV (вводится в действие с 01.01.2009).
Статья 130. Подтверждение прав на ценную бумагу
1. Подтверждением права на документарную ценную бумагу является сама ценная бумага. В случае передачи документарной ценной бумаги на хранение профессиональному участнику рынка ценных бумаг, уполномоченному на такое хранение в соответствии с выданной ему лицензией или в соответствии с законодательными актами Республики Казахстан, подтверждением права на эту ценную бумагу является выписка со счета, открытого данным профессиональным участником в целях ее учета. При расхождении между документарной ценной бумагой и выпиской с указанного счета приоритет имеет выписка.
2. Подтверждением права на бездокументарную ценную бумагу является выписка со счета, открытого в целях ее учета у профессионального участника
рынка ценных бумаг, который уполномочен на регистрацию сделок с ценными бумагами в соответствии с выданной ему лицензией или в соответствии с законодательными актами Республики Казахстан.
3. Порядок открытия и ведения профессиональными участниками рынка ценных бумаг счетов, предназначенных для учета ценных бумаг, а также требования к содержанию и оформлению выписок с таких счетов определяются законодательством Республики Казахстан.
Сноска. Статья 130 в редакции Закона РК от 16.05.2003 N 416; с изменениями , внесенными Законом РК от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 131. Требования к ценной бумаге
1. Виды прав, которые удостоверяются ценными бумагами, обязательные реквизиты ценных бумаг, требования к форме ценной бумаги и другие необходимые требования определяются законодательными актами или в установленном ими порядке.
2. Отсутствие обязательных реквизитов ценной бумаги или несоответствие ценной бумаги установленной для нее форме влечет ее недействительность.
Статья 132. Передача прав по ценной бумаге
1. Для передачи другому лицу прав, удостоверенных ценной бумагой на предъявителя, достаточно вручения ценной бумаги этому лицу.
2. Права, удостоверенные именной ценной бумагой, выпущенной в документарной форме, передаются в порядке, установленном для уступки требования (цессии). В соответствии со статьей 347 настоящего Кодекса лицо, передающее право по ценной бумаге, несет ответственность за недействительность соответствующего требования, но не за его исполнение.
2-1. Особенности передачи прав по эмиссионным ценным бумагам и подтверждение прав по ним определяются законодательными актами Республики Казахстан.
3. Права по ордерной ценной бумаге передаются путем совершения на этой бумаге передаточной надписи - индоссамента. Лицо, передающее права по ордерной ценной бумаге (индоссант), несет ответственность не только за существование права, но и за его осуществление, за исключением случаев, установленных законодательным актом Республики Казахстан об ипотеке недвижимого имущества.
Индоссамент, совершенный на ценной бумаге, переносит все права, удостоверенные ценной бумагой, на лицо, которому или приказу которого передаются права по ценной бумаге - (индоссата). Индоссамент может быть бланковым (без указания лица, которому должно быть произведено исполнение).
Индоссамент может быть ограничен только поручением осуществлять права, удостоверенные ценной бумагой, без передачи этих прав индоссату ( препоручительный индоссамент). В этом случае индоссат выступает в качестве представителя.
Сноска. Статья 132 с изменениями, внесенными Законом РК от 02.03.1998 N 211; от 16.05.2003 N 416; от 03.06.2003 N 426; от 21.06.2013 № 106-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.11.2015 № 422-V (вводится в действие с 01.01.2016).
Статья 133. Исполнение по ценной бумаге
1. Лицо, выдавшее ценную бумагу, и все лица, индоссировавшие ее, отвечают перед ее законным владельцем солидарно, за исключением случаев, установленных законодательным актом Республики Казахстан об ипотеке недвижимого имущества. В случае удовлетворения требования законного владельца ценной бумаги об исполнении удостоверенного ею обязательства одним или несколькими лицами из числа обязавшихся по ценной бумаге они приобретают право обратного требования (регресса) к остальным лицам, ранее их обязавшимся по ценной бумаге.
2. Отказ от исполнения обязательства, удостоверенного ценной бумагой, со ссылкой на отсутствие основания обязательства либо на его недействительность не допускается.
3. Владелец ценной бумаги, обнаруживший подлог или подделку ценной бумаги, вправе предъявить к лицу, передавшему ему бумагу, требование о надлежащем исполнении обязательства, удостоверенного ценной бумагой, и о возмещении убытков.
4. Права по ценной бумаге, находящейся у незаконного владельца, не подлежат осуществлению.
Сноска. В статью 133 внесены изменения - Законом РК от 3 июня 2003 г. N
Статья 134. Восстановление ценной бумаги
426
Восстановление прав по утраченным ценным бумагам на предъявителя и ордерным ценным бумагам производится судом в порядке, предусмотренном процессуальным законодательством.
Статья 135. Бездокументарные ценные бумаги
(Статья 135 исключена - Законом РК от 16 мая 2003 г. N 416)
Статья 136. Облигация
1. Облигация - ценная бумага с заранее установленным при ее выпуске сроком обращения, удостоверяющая в соответствии с условиями выпуска права на получение от лица, выпустившего облигацию, вознаграждения по ней и по окончании срока ее обращения - номинальной стоимости облигации в деньгах или ином имущественном эквиваленте.
2. Облигации выпускаются только как именные эмиссионные ценные бумаги. 3. Правительство Республики Казахстан, Национальный Банк Республики
Казахстан, коммерческие организации вправе выпускать облигации. 4. Виды облигаций и порядок их выпуска устанавливаются
законодательством Республики Казахстан. Сноска. Статья 136 в редакции Закона РК от 16.05.2003 N 416; с изменениями
, внесенными Законом РК от 20.12.2004 N 13 (вводится в действие с 01.01.2005).
Статья 137. Чек
Сноска. Статья 137 исключена Законом РК от 11.07.1997 N 154.
Статья 138. Вексель
Сноска. Статья 138 исключена Законом РК от 11.07.1997 N 154.
Статья 139. Акция
1. Акция - ценная бумага, выпускаемая акционерным обществом и удостоверяющая права на участие в управлении акционерным обществом, получение дивиденда по ней и части имущества акционерного общества при его ликвидации, а также иные права, предусмотренные законодательными актами Республики Казахстан.
2. Акции выпускаются только как именные эмиссионные ценные бумаги. 3. Виды акций устанавливаются законодательными актами Республики
Казахстан.
Порядок выпуска акций устанавливается законодательством Республики Казахстан о рынке ценных бумаг.
4. Некоммерческие организации, созданные в организационно-правовой форме акционерного общества, выплату дивидендов по своим акциям не осуществляют.
5. Законодательными актами Республики Казахстан может быть предусмотрена возможность выкупа акций по решению суда у акционера, нарушающего своими действиями или бездействием интересы акционерного общества.
Законодательными актами Республики Казахстан могут быть предусмотрены возможность и основания принудительного выкупа акций банков и организаций, осуществляющих отдельные виды банковских операций, а также страховых ( перестраховочных) организаций в случае наличия у них отрицательного размера собственного капитала, рассчитываемого в порядке, установленном законодательными актами Республики Казахстан.
Сноска. Статья 139 в редакции Закона РК от 16 мая 2003 г. N 416; с изменениями, внесенными Законом РК от 8 июля 2005 г. N 72 (порядок введения в действие см. ст.2) .
Статья 139-1. Банковский депозитный сертификат
Банковский депозитный сертификат - именная неэмиссионная ценная бумага, удостоверяющая права ее держателя на получение по истечении установленного для нее условиями выпуска срока обращения либо до его истечения ее номинальной стоимости, а также вознаграждения в размере, установленном условиями выпуска.
Сноска. Кодекс дополнен статьей 139-1 в соответствии с Законом РК от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 140. Банковский сертификат
Сноска. Статья 140 исключена Законом РК от 11.07.1997 N 154.
Параграф 3. Личные неимущественные права
Статья 141. Защита личных неимущественных прав
1. Физическое лицо, личные неимущественные права которого нарушены, помимо мер, предусмотренных статьей 9 настоящего Кодекса, имеет право на возмещение морального вреда по правилам настоящего Кодекса.
2. Защита личных неимущественных прав осуществляется судом в порядке, предусмотренном гражданским процессуальным законодательством.
3. Личные неимущественные права подлежат защите независимо от вины лица, нарушившего право, если иное не предусмотрено настоящим Кодексом. Лицо, предъявившее требование о защите, должно доказать факт нарушения его личного неимущественного права.
4. Лицо, неимущественное право которого нарушено, может по своему выбору потребовать устранения последствий нарушения от нарушителя или за счет нарушителя самостоятельно совершить необходимые действия либо поручить их совершение третьему лицу.
Сноска. Статья 141 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 142. Личные неимущественные права, связанные с имущественными
При одновременном нарушении личных неимущественных и имущественных прав размер возмещения имущественного вреда увеличивается с учетом компенсации, причитающейся потерпевшему за нарушение личных неимущественных прав.
Статья 143. Защита чести, достоинства и деловой репутации
1. Гражданин вправе требовать в судебном порядке опровержения сведений, порочащих его честь, достоинство или деловую репутацию.
2. Если сведения, порочащие честь, достоинство или деловую репутацию гражданина или юридического лица, распространены в средствах массовой информации, они должны быть бесплатно опровергнуты в тех же средствах массовой информации.
В случае, если указанные сведения содержатся в документе, исходящем от организации, такой документ подлежит замене или отзыву с обязательным сообщением адресатам о несоответствии действительности содержащихся в этом документе сведений.
Порядок опровержения в иных случаях устанавливается судом. 3. Гражданин или юридическое лицо, в отношении которого средствами
массовой информации опубликованы сведения, ущемляющие его права или
законные интересы, имеет право на бесплатную публикацию своего ответа в тех же средствах массовой информации.
4. Требование гражданина или юридического лица о публикации опровержения либо ответа в средстве массовой информации рассматривается судом в случае, если орган массовой информации отказал в такой публикации либо в течение месяца не произвел публикацию, а также в случае его ликвидации .
5. Если решение суда не выполнено, суд вправе наложить на нарушителя штраф, взыскиваемый в доход бюджета. Штраф налагается в порядке и размерах, установленных гражданским процессуальным законодательством. Уплата штрафа не освобождает нарушителя от обязанности выполнить предусмотренное решением суда действие.
6. Гражданин, в отношении которого распространены сведения, порочащие его честь, достоинство или деловую репутацию, вправе наряду с опровержением таких сведений требовать возмещения убытков и морального вреда, причиненных их распространением.
Правила настоящей статьи о защите деловой репутации гражданина соответственно применяются к защите деловой репутации юридического лица, за исключением требования о возмещении морального вреда. К защите деловой репутации юридического лица применяются правила о возмещении убытков в порядке, установленном настоящим Кодексом.
7. Если установить лицо, распространившее сведения, порочащие честь, достоинство или деловую репутацию гражданина или юридического лица, невозможно, лицо, в отношении которого такие сведения распространены, вправе обратиться в суд с заявлением о признании распространенных сведений не соответствующими действительности.
Сноска. Статья 143 с изменениями, внесенными законами РК от 06.02.2009 N 123-IV (порядок введения в действие см. ст.2); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 144. Право на охрану тайны личной жизни
1. Гражданин имеет право на охрану тайны личной жизни, в том числе тайны переписки, телефонных переговоров, дневников, заметок, записок, интимной жизни, усыновления, рождения, врачебной, адвокатской тайны, тайны банковских вкладов.
Раскрытие тайны личной жизни возможно лишь в случаях, установленных законодательными актами.
2. Опубликование дневников, записок, заметок и других документов допускается лишь с согласия их автора, а писем - с согласия их автора и адресата . В случае смерти кого-либо из них указанные документы могут публиковаться с согласия пережившего супруга и детей умершего.
Сноска. В статью 144 внесены изменения - Законом РК от 11.07.1997 N 154.
Статья 145. Право на собственное изображение
1. Никто не имеет право использовать изображение какого-либо лица без его согласия, а в случае его смерти - без согласия наследников.
2. Опубликование, воспроизведение и распространение изобразительного произведения (картина, фотография, кинофильм и другие), в котором изображено другое лицо, допускается лишь с согласия изображенного, а после его смерти с согласия его детей и пережившего супруга. Такого согласия не требуется, если это установлено законодательными актами, либо изображенное лицо позировало за плату.
Статья 146. Право на неприкосновенность жилища
Гражданин имеет право на неприкосновенность жилища, то есть право пресекать любые попытки вторжения в жилище помимо его воли, кроме случаев, предусмотренных законодательными актами.
Глава 4. Сделки
Статья 147. Понятие сделки
Сделками признаются действия граждан и юридических лиц, направленные на установление, изменение или прекращение гражданских прав и обязанностей.
Статья 148. Односторонние сделки и договоры
1. Сделки могут быть односторонними и двух- или многосторонними ( договоры).
2. Односторонней считается сделка, для совершения которой, в соответствии с законодательством или соглашением сторон, необходимо и достаточно выражения воли одной стороны.
3. Для совершения договора необходимо выражение согласованной воли двух сторон (двусторонняя сделка) либо трех или более сторон (многосторонняя сделка).
Статья 149. Правовое регулирование односторонних сделок
1. Односторонняя сделка создает обязанности для лица, совершившего сделку . Она может создавать обязанности для других лиц лишь в случаях, установленных законодательными актами либо соглашением с этими лицами.
2. К односторонним сделкам соответственно применяются общие положения об обязательствах и о договорах, поскольку это не противоречит законодательству, природе и существу сделки.
Статья 150. Сделки, совершенные под условием
1. Сделка считается совершенной под отлагательным условием, если стороны поставили возникновение прав и обязанностей в зависимость от обстоятельства, относительно которого неизвестно, наступит оно или не наступит.
2. Сделка считается совершенной под отменительным условием, если стороны поставили прекращение прав и обязанностей в зависимость от обстоятельства, относительно которого неизвестно, наступит оно или не наступит.
3. Если наступлению условия недобросовестно воспрепятствовала сторона, которой наступление условия невыгодно, то условие признается наступившим.
Если наступлению условия недобросовестно содействовала сторона, которой наступление условия выгодно, то условие признается ненаступившим.
Статья 151. Форма сделки
1. Сделки совершаются устно или в письменной форме (простой или нотариальной).
2. Сделка, для которой законодательством или соглашением сторон не установлена письменная (простая либо нотариальная) или иная определенная форма, может быть совершена устно, в частности - все сделки, исполняемые при самом их совершении. Такая сделка считается совершенной и в том случае, когда из поведения лица явствует его воля совершить сделку.
3. Сделка, подтвержденная выдачей жетона, билета или иного обычно принятого подтверждающего знака, признается заключенной в устной форме, если иное не установлено законодательством.
4. Молчание признается выражением воли совершить сделку в случаях, предусмотренных законодательством или соглашением сторон.
5. Сделки во исполнение договора, заключенного в письменной форме, могут по соглашению сторон совершаться устно, если это не противоречит законодательству.
Статья 152. Письменная форма сделки
1. В письменной форме должны совершаться сделки: 1) осуществляемые в процессе предпринимательской деятельности, кроме
сделок, исполняемых при самом их совершении, если для отдельных видов сделок иное специально не предусмотрено законодательством или не вытекает из обычаев делового оборота;
2) на сумму свыше ста месячных расчетных показателей, за исключением сделок, исполняемых при самом их совершении;
3) в иных случаях, предусмотренных законодательством или соглашением сторон.
1-1. Письменная форма сделки совершается на бумажном носителе или в электронной форме.
2. Сделка, совершенная в письменной форме, должна быть подписана сторонами или их представителями, если иное не вытекает из обычаев делового оборота.
Допускается при совершении сделки использование средств факсимильного копирования подписи, электронной цифровой подписи, если это не противоречит законодательству или требованию одного из участников.
3. Двусторонние сделки могут совершаться путем обмена документами, каждый из которых подписывается стороной, от которой он исходит.
К совершению сделки в письменной форме приравнивается, если иное не установлено законодательством или соглашением сторон, обмен письмами, телеграммами, телефонограммами, телетайпограммами, факсами, электронными документами, электронными сообщениями или иными документами, определяющими субъектов и содержание их волеизъявления.
Законами Республики Казахстан и (или) по требованию одной из сторон могут устанавливаться дополнительные требования, которым должна соответствовать форма сделки, в частности совершение на бланке определенной формы, скрепление печатью юридического лица, если данное лицо в соответствии с законодательством Республики Казахстан должно иметь печать.
4. Если гражданин вследствие физического недостатка, болезни или неграмотности не может собственноручно подписаться, то по его просьбе сделку может подписать другой гражданин. Подпись последнего, если иное не предусмотрено законодательством, должна быть засвидетельствована нотариусом либо другим должностным лицом, имеющим право совершать такое нотариальное действие, с указанием причин, в силу которых совершающий сделку не мог подписать ее собственноручно.
5. Сторона, исполнившая сделку, совершенную в письменной форме, вправе требовать от другой стороны документ, подтверждающий исполнение.
Такое же право имеет сторона, исполнившая устную предпринимательскую сделку, кроме сделок, исполняемых при самом их совершении.
Сноска. Статья 152 с изменениями, внесенными законами РК от 02.03.1998 г. № 211; от 07.01.2003 г. № 372; от 29.12.2014 № 269-V (вводится в действие с 01.01.2015); от 24.11.2015 № 419-V (вводится в действие с 01.01.2016); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 24.05.2018 № 156-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 153. Последствия несоблюдения письменной формы сделки
1. Несоблюдение простой письменной формы сделки лишает стороны права в случае спора подтверждать ее совершение, содержание или исполнение свидетельскими показаниями. Стороны, однако, вправе подтверждать совершение, содержание или исполнение сделки письменными или иными, кроме свидетельских показаний, доказательствами.
2. В случаях, прямо указанных в законах Республики Казахстан или соглашении сторон, при несоблюдении простой письменной формы сделка считается ничтожной.
3. При несоблюдении простой письменной формы внешнеэкономическая сделка считается ничтожной.
Сноска. Статья 153 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 154. Нотариальное удостоверение сделки
1. В случаях, установленных законами Республики Казахстан или соглашением сторон, письменные сделки считаются совершенными только после их нотариального удостоверения.
Несоблюдение требования о нотариальном удостоверении влечет ничтожность сделки с последствиями, предусмотренными пунктом 3 статьи 157- 1 настоящего Кодекса, за исключением случаев, установленных пунктом 2 настоящей статьи.
2. Если сделка, требующая нотариального удостоверения, фактически исполнена сторонами или одной из сторон, по своему содержанию не противоречит законодательству и не нарушает прав третьих лиц, суд по
заявлению заинтересованной стороны вправе признать сделку действительной. В этом случае последующее нотариальное удостоверение сделки не требуется.
Сноска. Статья 154 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 155. Регистрация сделок
1. Сделки, подлежащие в соответствии с законодательными актами обязательной государственной или иной регистрации, считаются совершенными с момента регистрации, если иное не предусмотрено законодательными актами.
Отказ в регистрации должен быть оформлен в письменном виде и возможен лишь со ссылкой на нарушение требований законодательства.
2. Если одна из сторон уклоняется от государственной регистрации сделки, суд вправе по требованию другой стороны вынести решение о регистрации сделки. В этом случае сделка регистрируется в соответствии с решением суда.
Сноска. Статья 155 в редакции Закона РК от 26.07.2007 № 311 (вводится в действие по истечении 10 календарных дней после официального опубликования ); с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 156. Биржевые сделки
1. Биржевые сделки - сделки, предметом которых является имущество, допущенное к обращению на бирже, и которые заключаются на бирже участниками проводимых ею торгов в соответствии с законодательством Республики Казахстан о соответствующих биржах (товарных, фондовых и других) и правилами биржевой торговли.
2. Биржевые сделки оформляются документами, выдаваемыми биржей в подтверждение заключения данных сделок.
3. К биржевым сделкам в зависимости от их содержания применяются правила о соответствующем договоре (купли-продажи, комиссии и других), если иное не вытекает из законодательства, соглашения сторон или существа сделки.
4. Законодательством или правилами биржевой торговли могут предусматриваться условия биржевых сделок, составляющие коммерческую тайну сторон и не подлежащие разглашению без их согласия, кроме сведений, представляемых в уполномоченный орган по финансовому мониторингу в
соответствии с Законом Республики Казахстан "О противодействии легализации (отмыванию) доходов, полученных преступным путем, и финансированию терроризма".
5. Споры, связанные с заключением биржевых сделок, рассматриваются в арбитраже при соответствующей бирже, решение которого может быть отменено судом в случаях, предусмотренных законом Республики Казахстан.
6. (исключен). Сноска. Статья 156 с изменениями, внесенными законами РК от 02.03.1998 №
211; от 16.05.2003 № 416; от 28.08.2009 № 192-IV (вводится в действие с 08.03.2010); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 21.06.2012 № 19-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 10.06.2014 № 206-V ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 08.04.2016 № 489-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 157. Оспоримые и ничтожные сделки
1. Сделка недействительна по основаниям, установленным настоящим Кодексом или иными законодательными актами, в силу признания ее таковой судом (оспоримая сделка) либо по основаниям, прямо предусмотренным законодательными актами, независимо от такого признания (ничтожная сделка).
Сделка относится к оспоримой, если ее ничтожность не предусмотрена законодательными актами.
В случае возникновения спора о ничтожности сделки, ее недействительность устанавливается судом.
2. Сделка признается недействительной при нарушении требований, предъявляемых к форме, содержанию и участникам сделки, а также к свободе их волеизъявления по основаниям, установленным настоящим Кодексом или иными законодательными актами.
3. Требование о признании сделки недействительной может быть предъявлено заинтересованными лицами, надлежащим государственным органом либо прокурором.
Заинтересованным лицом является лицо, права и законные интересы которого нарушены или могут быть нарушены в результате совершения указанной сделки.
Перечень лиц, имеющих право требовать признания ее недействительной, устанавливается настоящим Кодексом и (или) иными законодательными актами.
Сноска. Статья 157 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 157-1. Общие положения о последствиях недействительности сделки
1. Требование о применении последствий недействительности ничтожной сделки вправе предъявить сторона сделки либо лица, установленные в пункте 3 статьи 157 настоящего Кодекса.
2. Недействительная сделка не влечет юридических последствий, за исключением тех, которые связаны с ее недействительностью, и недействительна с момента ее совершения, если иное не предусмотрено настоящим Кодексом, законодательными актами Республики Казахстан или не вытекает из существа или содержания сделки.
3. При недействительности сделки каждая из сторон обязана возвратить другой все полученное по сделке, а при невозможности возврата в натуре (в том числе, когда полученное выражается в пользовании имуществом, выполненной работе или предоставленной услуге) – возместить стоимость подлежащего возврату имущества, стоимость пользования имуществом, выполненных работ или оказанных услуг в деньгах, если иные последствия недействительности сделки не предусмотрены настоящим Кодексом или иными законодательными актами Республики Казахстан.
4. Суд может взыскать со стороны, виновной в совершении действий, вызвавших недействительность сделки, в пользу другой стороны понесенные последней убытки, связанные с признанием сделки недействительной.
5. Если сделка направлена на достижение преступной цели, противоправность которой установлена приговором (постановлением) суда, то при наличии умысла у обеих сторон все, полученное ими по сделке или предназначенное к получению, по решению или приговору суда подлежит конфискации. В случае исполнения такой сделки одной стороной у другой стороны подлежит конфискации все, полученное ею, и все, причитающееся с нее по сделке первой стороне. Если ни одна из сторон не приступила к исполнению, конфискации подлежит все, предусмотренное сделкой к исполнению.
6. При наличии умысла на достижение преступной цели, противоправность которой установлена приговором (постановлением) суда, лишь у одной из сторон все, полученное ею по сделке, подлежит возвращению другой стороне, а полученное последней либо причитавшееся ей по сделке подлежит конфискации.
7. С учетом конкретных обстоятельств суд вправе не применять частично либо полностью последствий, предусмотренных пунктами 5 и 6 настоящей статьи, в части конфискации имущества, полученного либо подлежащего получению по недействительной сделке. В этой части наступают последствия, предусмотренные пунктом 3 настоящей статьи.
8. Признавая сделку недействительной, суд вправе с учетом конкретных обстоятельств ограничиться запретом ее дальнейшего исполнения.
Сноска. Глава 4 дополнена статьей 157-1 в соответствии с Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 158. Недействительность сделки, содержание которой не соответствует требованиям законодательства Республики Казахстан
1. Сделка, содержание которой не соответствует требованиям законодательства, а также сделка, совершенная с целью, заведомо противоречащей основам правопорядка, является оспоримой и может быть признана судом недействительной, если настоящим Кодексом и иными законодательными актами Республики Казахстан не установлено иное.
2. Сделка, направленная на достижение преступной цели, противоправность которой установлена приговором (постановлением) суда, ничтожна.
3. Лицо, умышленно заключившее сделку, которая нарушает требование законодательства Республики Казахстан, устава юридического лица либо компетенцию его органов, не вправе требовать признания сделки недействительной, если такое требование вызвано корыстными мотивами или намерением уклониться от ответственности.
4. В случае, если один из участников сделки совершил ее с намерением уклониться от исполнения обязательства или от ответственности перед третьим лицом либо государством, а другой участник сделки знал или должен был знать об этом намерении, заинтересованное лицо (государство) вправе требовать признания сделки недействительной.
Сноска. Статья 158 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 159. Основания недействительности сделок
1. Ничтожна сделка, совершенная без получения необходимого разрешения либо после окончания срока действия разрешения.
2. Может быть признана судом недействительной сделка, преследующая цели недобросовестной конкуренции или нарушающая требования деловой этики.
3. Ничтожна сделка, совершенная лицом, не достигшим четырнадцати лет ( малолетним), кроме сделок, предусмотренных статьей 23 настоящего Кодекса.
4. Сделка, совершенная несовершеннолетним, достигшим четырнадцати лет, без согласия его законных представителей, кроме сделок, которые он по закону имеет право совершать самостоятельно, может быть признана судом недействительной по иску законных представителей. Правила настоящей статьи не распространяются на сделки несовершеннолетних, признаваемых в соответствии с настоящим Кодексом полностью дееспособными (пункт 2 статьи 17, статья 22-1 настоящего Кодекса).
5. Ничтожна сделка, совершенная лицом, признанным недееспособным вследствие душевной болезни или слабоумия. Сделка, совершенная гражданином , впоследствии признанным недееспособным (статья 26 настоящего Кодекса), является оспоримой и может быть признана судом недействительной по иску его опекуна, если доказано, что уже в момент совершения сделки этот гражданин находился в состоянии психического расстройства.
6. По требованию попечителя суд может признать недействительной сделку, совершенную лицом, ограниченным судом в дееспособности.
7. Сделка, совершенная гражданином, хотя и дееспособным, но находившимся в момент ее совершения в таком состоянии, когда он не мог понимать значения своих действий или руководить ими, может быть признана судом недействительной по иску этого гражданина, но если при жизни у гражданина не было возможности для предъявления иска, после смерти гражданина - по иску других заинтересованных лиц.
8. Сделка, совершенная вследствие заблуждения, имеющего существенное значение, может быть признана судом недействительной по иску стороны, действовавшей под влиянием заблуждения. Существенное значение имеет заблуждение относительно природы сделки, тождества или таких качеств ее предмета, которые значительно снижают возможности его использования по назначению. Заблуждение в мотивах может служить основанием недействительности сделки лишь при включении такого мотива в ее содержание в качестве отлагательного или отменительного условия (статья 150 настоящего Кодекса).
Если заблуждение явилось следствием грубой неосторожности участника сделки либо охватывается его предпринимательским риском, суд с учетом конкретных обстоятельств и интересов другого участника сделки вправе отказать в иске о признании сделки недействительной.
9. Сделка, совершенная под влиянием обмана, насилия, угрозы, а также сделка, которую лицо было вынуждено совершить вследствие стечения тяжелых обстоятельств на крайне невыгодных для себя условиях, чем другая сторона воспользовалась (кабальная сделка), может быть признана судом недействительной по иску потерпевшего.
10. Сделка, совершенная вследствие злонамеренного соглашения представителя одной стороны с другой стороной, может быть признана судом недействительной по иску потерпевшей стороны. Возмещение убытков, понесенных потерпевшей стороной (пункт 4 статья 9 настоящего Кодекса), в субсидиарном порядке может быть возложено на недобросовестного представителя.
11. Сделка, совершенная юридическим лицом в противоречии с целями деятельности, определенно ограниченными настоящим Кодексом, иными законодательными актами Республики Казахстан или учредительными документами, либо с нарушением уставной компетенции его органа, может быть признана недействительной по иску собственника имущества юридического лица или его учредителя (участника), если доказано, что другая сторона в сделке знала или должна была знать о таких нарушениях.
12. Сделки, предусмотренные пунктами 3, 5 настоящей статьи, по требованию законных представителей малолетних или недееспособных лиц решением суда могут быть признаны действительными, если они совершены к выгоде указанных лиц.
Сноска. Статья 159 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 16.05.2014 № 203-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 160. Мнимые или притворные сделки
1. Сделка, совершенная лишь для вида, без намерения создать соответствующие ей правовые последствия (мнимая сделка), признается недействительной судом по иску заинтересованного лица, надлежащего государственного органа или прокурора.
2. Если сделка совершена с целью прикрыть другую сделку (притворная), то применяются правила, относящиеся к той сделке, которую стороны действительно имели в виду.
Сноска. Статья 160 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 161. Последствия недействительности части сделки
Недействительность части сделки не влечет за собой недействительности прочих ее частей, если можно предположить, что сделка была бы совершена и без включения недействительной ее части.
Статья 162. Сроки исковой давности по недействительным сделкам
1. (исключен) 2. Исковая давность по спорам, связанным с недействительностью сделки по
основаниям, предусмотренным пунктами 9 и 10 статьи 159 настоящего Кодекса, составляет год со дня прекращения насилия или угрозы, под влиянием которых была совершена сделка, либо со дня, когда истец узнал или должен был узнать об иных обстоятельствах, являющихся основанием для признания сделки недействительной.
Сноска. Пункт 1 статьи 162 исключен Законом РК от 2 марта 1998 г. N 211.
Глава 5. Представительство и доверенность
Статья 163. Представительство
1. Сделка, совершенная одним лицом (представителем) от имени другого лица (представляемого) в силу полномочия, основанного на доверенности, законодательстве, решении суда либо административном акте, непосредственно создает, изменяет и прекращает гражданские права и обязанности представляемого.
Полномочие может также явствовать из обстановки, в которой действует представитель (продавец в розничной торговле, кассир и т.п.).
2. По сделке, совершенной представителем, права и обязанности возникают непосредственно у представляемого.
3. Представитель не может совершать сделки от имени представляемого ни в отношении себя лично, ни в отношении другого лица, представителем которого он одновременно является.
Данное правило не распространяется на коммерческое представительство. 4. Не являются представителями лица, действующие хотя и в чужих
интересах, но от собственного имени (коммерческие посредники, душеприказчики при наследовании и т.п.), а также лица, уполномоченные на вступление в переговоры относительно возможных в будущем сделок.
5. Не допускается совершение через представителя сделки, которая по своему характеру может быть совершена только лично, а также других сделок в случаях, предусмотренных законодательными актами.
Сноска. Статья 163 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 164. Представительство за недееспособных лиц
От имени недееспособных граждан сделки совершают их законные представители.
Сноска. Статья 164 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 165. Представительство без полномочия
Сделка, совершенная от имени другого лица лицом, не уполномоченным на совершение сделки, или с превышением полномочия, создает, изменяет и прекращает гражданские права и обязанности для представляемого лишь в случае последующего одобрения им этой сделки.
Последующее одобрение представляемым делает сделку действительной с момента ее совершения.
Статья 166. Коммерческое представительство
1. Лицо, постоянно и самостоятельно представительствующее от имени предпринимателей при заключении ими договоров (коммерческий представитель ), действует на основе письменного договора, содержащего указания на полномочия представителя, а при отсутствии таких указаний - также доверенности.
2. Коммерческий представитель может одновременно представлять интересы разных сторон договора, заключаемого с его участием. При этом он обязан исполнять данные ему поручения с заботливостью обычного предпринимателя.
3. Коммерческий представитель вправе требовать уплаты обусловленного вознаграждения и понесенных им при исполнении поручения издержек от сторон договора в равных долях, если иное не предусмотрено соглашением между ними.
4. Коммерческий представитель обязан сохранять в тайне ставшие ему известными сведения о торговых сделках и после исполнения данного ему поручения.
5. Особенности коммерческого представительства в отдельных сферах предпринимательской деятельности устанавливаются законодательством.
Статья 167. Доверенность
1. Доверенностью признается письменное уполномочие одного лица ( доверителя) для представительства от его имени, выдаваемое им другому лицу ( поверенному).
2. Должна быть нотариально заверена доверенность на управление имуществом и на совершение сделок, требующих нотариального удостоверения, если иное не установлено законодательными актами.
3. К нотариально удостоверенным доверенностям приравниваются: 1) доверенности военнослужащих и других лиц, находящихся на излечении в
госпиталях, санаториях и других военно-лечебных учреждениях, удостоверенные начальниками, заместителями по медицинской части, старшими и дежурными врачами этих госпиталей, санаториев и других военно-лечебных учреждений;
2) доверенности военнослужащих, а в пунктах дислокации воинских частей, соединений, учреждений и военно-учебных заведений, где нет государственных нотариальных контор и других органов, совершающих нотариальные действия, также доверенности рабочих и служащих, членов их семей и членов семей военнослужащих, удостоверенные командирами (начальниками) этих частей, соединений, учреждений, заведений;
3) доверенности лиц, находящихся в местах лишения свободы, удостоверенные начальниками мест лишения свободы;
4) доверенности совершеннолетних дееспособных граждан, находящихся в учреждениях социальной защиты населения, удостоверенные руководителем этого учреждения или соответствующего органа социальной защиты населения;
5) доверенности лиц, находящихся в следственных изоляторах, удостоверенные начальниками следственных изоляторов.
4. Доверенность на получение корреспонденции, в том числе денежной и посылочной, на получение заработной платы и иных выплат от граждан и юридических лиц может быть удостоверена местными исполнительными органами городов республиканского значения, столицы, районов, городов
областного значения, акимами города районного значения, поселка, села, где проживает доверитель, организацией, в которой он работает или учится, жилищно-эксплуатационной организацией по месту жительства, администрацией стационарного лечебного учреждения, в котором он находится на излечении, а также командованием соответствующих воинских частей, когда доверенность выдается военнослужащим. Доверенность, посылаемая по телеграфу, а также по другим видам связи, когда отправку документа осуществляет работник связи, удостоверяется органами связи.
5. Третьи лица вправе считать подлинной выданную для совершения действий в их отношении доверенность, направленную доверителем поверенному по факсимильной и иной связи, без посредства официальных органов связи.
6. Доверенность от имени юридического лица выдается за подписью его руководителя или иного лица, уполномоченного на это его учредительными документами, и скрепляется печатью этой организации, если данное лицо в соответствии с законодательством Республики Казахстан должно иметь печать.
7. Доверенность от имени государственного органа, коммерческой и некоммерческой организации на получение или выдачу денег и других имущественных ценностей должна быть подписана также главным (старшим) бухгалтером этой организации.
8. Порядок выдачи и форма доверенностей на совершение операций в банке и доверенностей на совершение сделок в области торговли могут определяться специальными правилами.
Сноска. Статья 167 с изменениями, внесенными законами РК от 20.12.2004 N 13 (вводится в действие с 01.01.2005); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); Конституционным Законом РК от 03.07.2013 № 121-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 29.12.2014 № 269-V (вводится в действие с 01.01.2015); от 27.02.2017 № 49-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 168. Срок доверенности
1. Доверенность может быть выдана на срок не более трех лет. Если в доверенности указан более длительный срок, она действительна в течение трех лет, а если в ней срок действия не указан - в течение одного года со дня выдачи.
2. Доверенность, в которой не указана дата ее выдачи, является ничтожной.
Сноска. Статья 168 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 169. Передоверие
1. Поверенный должен лично совершить те действия, на которые он уполномочен. Он может передоверить их совершение другому лицу только в том случае, если на это уполномочен полученной доверенностью либо вынужден к этому силою обстоятельства для охраны интересов доверителя.
2. Доверенность, по которой поверенный передает полномочия другому лицу, должна быть нотариально удостоверена, кроме случаев, предусмотренных пунктами 4 и 6 статьи 167 настоящего Кодекса.
К доверенности, по которой поверенный передоверяет полномочия другому лицу в полном объеме, должна быть приложена первоначальная доверенность. К доверенности, по которой поверенный передоверяет отдельные полномочия, указанные в первоначальной доверенности, другому лицу либо нескольким лицам, должна быть приложена нотариально засвидетельствованная копия первоначальной доверенности.
3. Срок действия доверенности, выданной по передоверию, не может превышать срока действия первоначальной доверенности, на основании которой она выдана.
4. Поверенный, передавший полномочия другому лицу, должен незамедлительно известить об этом доверителя и сообщить ему необходимые сведения об этом лице и его местожительстве. Невыполнение этой обязанности возлагает на поверенного ответственность за действия лица, которому он передал полномочия, как за свои собственные.
Сноска. Статья 169 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 170. Прекращение доверенности
1. Действие доверенности прекращается вследствие: 1) истечения срока доверенности; 2) осуществления действий, предусмотренных доверенностью; 3) отмены доверенности лицом, выдавшим ее; 4) отказа лица, которому выдана доверенность; 5) прекращения юридического лица, от имени которого выдана доверенность; 6) ликвидации юридического лица, на имя которого выдана доверенность;
7) смерти лица (в том числе объявления умершим), выдавшего доверенность, признания его недееспособным, ограниченно дееспособным или безвестно отсутствующим;
8) смерти гражданина (в том числе объявления умершим), которому выдана доверенность, признания его недееспособным, ограниченно дееспособным или безвестно отсутствующим.
2. Лицо, выдавшее доверенность, может во всякое время отменить доверенность или передоверие, а лицо, которому выдана доверенность, отказаться от нее. Соглашение об отказе от этого права ничтожно.
Сноска. Статья 170 с изменениями, внесенными Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 171. Последствия прекращения доверенности
1. Об отмене доверенности (статья 170 настоящего Кодекса) доверитель обязан известить лицо, которому выдана доверенность, а также известных ему третьих лиц, для представительства перед которыми выдана доверенность. Такая же обязанность возлагается на правопреемников лица, выдавшего доверенность, в случаях ее прекращения по основаниям, указанным в пунктах 5 и 7 статьи 170 настоящего Кодекса.
2. Права и обязанности, возникшие в результате действий лица, которому выдана доверенность до того, как это лицо узнало или должно было узнать о ее прекращении, сохраняет силу для выдавшего доверенность и его правопреемников в отношении третьих лиц. Это правило не применяется, если третье лицо знало или должно было знать, что действие доверенности прекратилось.
3. По прекращении доверенности лицо, которому она выдана, или его правопреемник должен немедленно вернуть доверенность.
4. С прекращением доверенности теряет силу и передача полномочий по этой доверенности другому лицу (передоверие).
Глава 6. Исчисление сроков
Статья 172. Определение срока
1. Срок, установленный законодательством, сделкой, либо назначаемый судом, определяется календарной датой или указанием на событие, которое должно неизбежно наступить.
2. Срок может устанавливаться также как период времени, который исчисляется годами, месяцами, неделями, днями или часами.
Статья 173. Начало срока, определяемого периодом времени
Течение срока, определяемого периодом времени, начинается на следующий день после календарной даты или наступления события, которыми определено его начало.
Статья 174. Окончание срока, определяемого периодом времени
1. Срок, исчисляемый годами, истекает в соответствующий месяц и число последнего года срока.
К сроку, исчисляемому в полгода, применяются правила для сроков, исчисляемых месяцами.
2. К сроку, исчисляемому кварталами года, применяются правила для сроков, исчисляемых месяцами. При этом квартал считается равным трем месяцам, а отсчет кварталов ведется с начала года.
3. Срок, исчисляемый месяцами, истекает в соответствующее число последнего месяца срока.
Срок, определяемый в полмесяца, рассматривается как срок, исчисляемый днями, и считается равным пятнадцати дням.
Если окончание срока, исчисляемого месяцами, приходится на такой месяц, в котором нет соответствующего числа, то срок истекает в последний день этого месяца.
4. Срок, исчисляемый неделями, истекает в соответствующий день последней недели срока.
Статья 175. Окончание срока в нерабочий день
Если последний день срока приходится на нерабочий день, днем окончания срока считается ближайший следующий за ним рабочий день.
Статья 176. Порядок совершения действий в последний день срока
1. Если срок установлен для совершения какого-либо действия, оно может быть выполнено до двадцати четырех часов последнего дня срока.
Однако, если это действие должно быть совершено в организации, то срок истекает в тот час, когда в этой организации по установленным правилам прекращаются соответствующие операции.
2. Письменные заявления и извещения, сданные на почту, телеграф или в иное учреждение связи до двадцати четырех часов последнего дня срока, считаются сделанными в срок.
Глава 7. Исковая давность
Статья 177. Понятие исковой давности
1. Исковая давность - это период времени, в течение которого может быть удовлетворено исковое требование, возникшее из нарушений права лица или охраняемого законом интереса.
2. Сроки исковой давности и порядок их исчисления предусматриваются законом и не могут быть изменены соглашением сторон.
Статья 178. Сроки исковой давности
1. Общий срок исковой давности устанавливается в три года. 2. Для отдельных видов требований законодательными актами могут
устанавливаться специальные сроки исковой давности, сокращенные или более длительные по сравнению с общим сроком.
3. Правила статей 177, 179-186 настоящего Кодекса распространяются также на специальные сроки исковой давности, если законодательными актами не установлено иное.
Статья 179. Применение исковой давности
1. Требование о защите нарушенного права принимается к рассмотрению судом независимо от истечения срока исковой давности.
2. Исковая давность применяется судом только по заявлению стороны в споре , сделанному до вынесения судом решения.
3. Истечение срока исковой давности до предъявления иска является основанием к вынесению судом решения об отказе в иске.
С истечением срока исковой давности по главному требованию истекает срок исковой давности и по дополнительным требованиям (о взыскании неустойки, об ответственности поручителя и т.п.).
Статья 180. Течение срока исковой давности
1. Течение срока исковой давности начинается со дня, когда лицо узнало или должно было узнать о нарушении права. Изъятия из этого правила устанавливаются настоящим Кодексом и иными законодательными актами.
2. По обязательствам с определенным сроком исполнения течение исковой давности начинается по окончании срока исполнения.
3. По обязательствам, срок исполнения которых не определен либо определен моментом востребования, течение исковой давности начинается с момента предъявления требования об исполнении обязательства, а если должнику предоставляется льготный срок для исполнения такого требования, исчисление исковой давности начинается по окончании указанного срока (пункт 2 статьи 277 настоящего Кодекса).
4. По регрессным обязательствам течение исковой давности начинается с момента исполнения основного обязательства.
Статья 181. Срок исковой давности при перемене лиц в обязательстве
Перемена лиц в обязательстве не влечет изменения срока исковой давности и порядка его исчисления.
Статья 182. Приостановление течения срока исковой давности
1. Течение срока исковой давности приостанавливается: 1) если предъявлению иска препятствовало чрезвычайное и
непредотвратимое при данных условиях событие (непреодолимая сила); 2) в силу объявленной Президентом Республики Казахстан отсрочки
исполнения обязательств данного вида (моратория); 3) если истец или ответчик находится в составе воинских подразделений,
переведенных на военное положение; 4) если у недееспособного лица отсутствует законный представитель;
5) в силу приостановления действия законодательства, регулирующего соответствующее отношение.
По искам о возмещении вреда, причиненного жизни или здоровью гражданина, течение срока исковой давности приостанавливается также в связи с обращением гражданина к соответствующим организациям о назначении и/или осуществлении пенсионных выплат или о назначении пособия - до назначения и/ или осуществления пенсионных выплат или назначения пособия либо отказа в назначении и/или осуществлении пенсионных выплат или назначении пособия.
2. Течение срока исковой давности приостанавливается, если указанные в настоящей статье обстоятельства возникли или продолжали существовать в последние шесть месяцев срока давности, а если этот срок не превышает шести месяцев - в течение срока давности.
3. Со дня прекращения обстоятельства, повлекшего приостановление, течение срока исковой давности продолжается. При этом остающаяся часть
срока удлиняется до шести месяцев, а если срок исковой давности не превышает шести месяцев - до срока давности.
Сноска. Пункт 1 статьи 182 - с изменениями, внесенными Законом Республики Казахстан от 19 июня 1997 года N 134. Внесены изменения в название статьи Законом РК от 2 марта 1998 г. N 211.
Статья 183. Перерыв течения срока исковой давности
1. Течение срока исковой давности прерывается предъявлением иска в установленном порядке, заключением сторонами договора о медиации, а также совершением обязанным лицом действий, свидетельствующих о признании долга или иной обязанности.
2. После перерыва течение срока исковой давности начинается заново; время, истекшее до перерыва, не засчитывается в новый срок.
Сноска. Статья 183 с изменением, внесенным Законом РК от 28.01.2011 № 402-IV (вводится в действие с 05.08.2011).
Статья 184. Течение срока исковой давности в случае оставления иска без рассмотрения
1. Если иск оставлен судом без рассмотрения, начавшееся до предъявления иска течение срока исковой давности продолжается в общем порядке.
2. Если судом оставлен без рассмотрения иск, предъявленный в уголовном деле, то начавшееся до предъявления иска течение срока исковой давности приостанавливается до вступления в законную силу приговора, которым иск оставлен без рассмотрения. Время, в течение которого давность была приостановлена, не засчитывается в срок исковой давности. При этом, если оставшаяся часть срока менее шести месяцев, она удлиняется до шести месяцев.
Статья 185. Восстановление срока исковой давности
1. В исключительных случаях, когда суд признает уважительной причину пропуска срока исковой давности по обстоятельствам, связанным с личностью истца (тяжелая болезнь, беспомощное состояние, неграмотность и т.п.), нарушенное право гражданина подлежит защите. Причины пропуска срока исковой давности могут признаваться уважительными, если они имели место в последние шесть месяцев срока давности, а если этот срок равен шести месяцам или менее шести месяцев - в течение срока давности.
2. Срок исковой давности восстанавливается и начинает течь вновь в случаях, когда у истца возникает в соответствии с законодательными актами право
предъявить новый иск по тому же делу в связи с отказом в исполнении судебного решения по этому делу.
Статья 186. Исполнение обязанности по истечении срока исковой давности
Должник или иное обязанное лицо, исполнившее обязанность по истечении срока исковой давности, не вправе требовать исполненное обратно, хотя бы в момент исполнения указанное лицо и не знало об истечении срока давности.
Статья 187. Требования, на которые исковая давность не распространяется
Исковая давность не распространяется: 1) на требования о защите нематериальных благ и личных неимущественных
прав, кроме случаев, предусмотренных законодательными актами; 2) на требования вкладчиков к банку о выдаче банковских вкладов; 3) на требования о возмещении вреда, причиненного жизни или здоровью
гражданина. Однако требования, предъявленные по истечении срока исковой давности, удовлетворяются не более чем за три года, предшествующие предъявлению иска;
4) на требования собственника или иного законного владельца об устранении всяких нарушений его права, если эти нарушения не были соединены с лишением владения (статьи 264, 265 настоящего Кодекса);
5) в случаях, установленных законодательными актами, - и на другие требования.
Сноска. В статью 187 внесены изменения - Законом РК от 11 июля 1997 г. N 154.
РАЗДЕЛ 2. ПРАВО СОБСТВЕННОСТИ И ИНЫЕ ВЕЩНЫЕ ПРАВА Глава 8. Общие положения о праве собственности и иных вещных правах
Сноска. Заголовок главы 8 в редакции Закона РК от 27.02.2017 № 49-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 188. Понятие и содержание права собственности
1. Право собственности есть признаваемое и охраняемое законодательными актами право субъекта по своему усмотрению владеть, пользоваться и распоряжаться принадлежащим ему имуществом.
Право собственности передается другому лицу со всеми обременениями, имевшимися на момент совершения сделки.
2. Собственнику принадлежат права владения, пользования и распоряжения своим имуществом.
Право владения представляет собой юридически обеспеченную возможность осуществлять фактическое обладание имуществом.
Право пользования представляет собой юридически обеспеченную возможность извлекать из имущества его полезные естественные свойства, а также получать от него выгоду. Выгода может выступать в виде дохода, приращения, плодов, приплода и в иных формах.
Право распоряжения представляет собой юридически обеспеченную возможность определять юридическую судьбу имущества.
3. Собственник вправе по своему усмотрению совершать в отношении принадлежащего ему имущества любые действия, в том числе отчуждать это имущество в собственность другим лицам, передавать им, оставаясь собственником, свои правомочия по владению, пользованию и распоряжению имуществом, отдавать имущество в залог и обременять его другими способами, распоряжаться им иным образом.
4. Осуществление собственником своих правомочий не должно нарушать прав и охраняемых законом интересов других лиц и государства. Нарушение прав и законных интересов может найти выражение, наряду с иными формами, в злоупотреблении собственником своим монопольным или иным доминирующим положением.
Собственник обязан принимать меры, предотвращающие ущерб здоровью граждан и окружающей среде, который может быть нанесен при осуществлении его прав.
5. Право собственности бессрочно. Право собственности на имущество может быть принудительно прекращено только по основаниям, предусмотренным настоящим Кодексом.
6. В случаях, на условиях и в пределах, предусмотренных законодательными актами, собственник обязан допустить ограниченное пользование его имуществом другими лицами.
Сноска. Пункт 1 статьи 188 дополнен абзацем - Закон РК от 2 марта 1998 г. N 211.
Статья 189. Бремя содержания имущества
1. Собственник несет бремя содержания принадлежащего ему имущества, если иное не предусмотрено законодательными актами или договором, и не может в одностороннем порядке переложить такое бремя на третье лицо.
2. Если имущество правомерно находилось у третьих лиц, то понесенные ими расходы на содержание чужого имущества подлежат возмещению собственником, если иное не предусмотрено договором.
Расходы по содержанию имущества не возмещаются лицу, обладавшему вещью недобросовестно и неправомерно (статья 263 настоящего Кодекса).
Статья 190. Риск случайной гибели или случайной порчи имущества
1. Риск случайной гибели или случайной порчи отчуждаемых вещей переходит на приобретателя одновременно с возникновением у него права собственности, если иное не установлено законодательными актами или договором.
2. Если отчуждатель виновно просрочил передачу вещей или приобретатель виновно просрочил принятие их, риск случайной гибели или случайной порчи несет просрочившая сторона.
Статья 191. Понятие и виды частной собственности
1. Частная собственность выступает как собственность граждан и негосударственных юридических лиц и их объединений.
2. В частной собственности может находиться любое имущество, за исключением отдельных видов имущества, которые в соответствии с законодательными актами не могут принадлежать гражданам или юридическим лицам.
Количество и стоимость имущества, находящегося в частной собственности, не ограничивается.
Сноска. В статью 191 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 192. Право государственной собственности
1. Государственная собственность выступает в виде республиканской и коммунальной собственности.
2. Республиканская собственность состоит из государственной казны и имущества, закрепленного за государственными республиканскими юридическими лицами в соответствии с законодательными актами.
Средства республиканского бюджета, объекты государственной собственности, перечисленные в статье 193 настоящего Кодекса, и иное государственное имущество, не закрепленное за государственными юридическими лицами, составляют государственную казну Республики Казахстан.
3. Коммунальная собственность состоит из местной казны и имущества, закрепленного за коммунальными юридическими лицами в соответствии с законодательными актами.
Средства местного бюджета и иное коммунальное имущество, не закрепленное за государственными юридическими лицами, составляют местную казну.
Примечание РЦПИ! Данная редакция пункта 3-1 действует с 01.01.2018 для городов районного
значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
3-1. Коммунальная собственность подразделяется по уровням местного государственного управления и самоуправления на:
областную, города республиканского значения, столицы; районную (города областного значения); города районного значения, села, поселка, сельского округа (коммунальная
собственность местного самоуправления). 4. Имущество, находящееся в государственной собственности, может
закрепляться за государственными юридическими лицами на праве хозяйственного ведения или оперативного управления.
5. Особенности правового режима государственного имущества, находящегося в ведении отдельных государственных учреждений, определяются законодательными актами.
6. Передача государственного имущества из одного вида государственной собственности в другой осуществляется в соответствии с законодательным актом Республики Казахстан о государственном имуществе.
Добровольная и безвозмездная передача имущества из частной собственности в государственную осуществляется в порядке, определяемом законодательным актом Республики Казахстан о государственном имуществе.
Примечание РЦПИ! Данная редакция части третьей пункта 6 действует с 01.01.2018 для городов
районного значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
Передача имущества, находящегося в коммунальной собственности, из одного уровня местного государственного управления и самоуправления в другой осуществляется в соответствии с законодательным актом Республики Казахстан о государственном имуществе.
7. Положения настоящей статьи применяются соответственно к иным, кроме права собственности, гражданским правам на государственное имущество, если иное не предусмотрено законодательным актом Республики Казахстан о государственном имуществе или не противоречит существу гражданских прав.
Сноска. Статья 192 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 04.11.1999 № 472; от 02.03.2001 № 162; от 21.05.2002 № 323; от 18.05.2005 N 50; от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 11.07.2017 № 90-VI (порядок введения в действие см. пп.1) п.1 ст.2).
Статья 193. Собственность на землю и другие природные ресурсы
Земля, ее недра, воды, растительный и животный мир, другие природные ресурсы находятся в государственной собственности. Земля может находиться также в частной собственности на основаниях, условиях и в пределах, установленных законодательными актами.
Сноска. Статья 193 в новой редакции - Закон РК от 2 марта 1998 г. N 211.
Статья 193-1. Стратегические объекты
1. Стратегическим объектом является имущество, имеющее социально-экономическое значение для устойчивого развития казахстанского общества, владение и (или) пользование и (или) распоряжение которым будут оказывать влияние на состояние национальной безопасности Республики Казахстан.
2. К стратегическим объектам могут быть отнесены: магистральные железнодорожные сети; магистральные трубопроводы; национальная электрическая сеть; магистральные линии связи; объекты телерадиовещания ( производственно-технологический комплекс наземных и спутниковых систем
телевизионного и радиовещания); нефтеперерабатывающие производства; энергопроизводящие объекты мощностью не менее 50 мегаватт; национальная почтовая сеть; международные аэропорты; морские порты, имеющие статус международного значения; аэронавигационные устройства системы управления воздушным движением; устройства и навигационные знаки, регулирующие и гарантирующие безопасность судоходства; объекты использования атомной энергии; объекты космической отрасли; водохозяйственные сооружения; автомобильные дороги общего пользования; а также пакеты акций (доли участия, паи) в юридических лицах, в собственности которых находятся стратегические объекты, пакеты акций (доли участия, паи) физических и юридических лиц, которые имеют возможность прямо или косвенно определять решения или оказывать влияние на принимаемые решения юридических лиц, в собственности которых находятся стратегические объекты.
Стратегические объекты могут находиться в государственной и частной собственности в соответствии с законодательными актами Республики Казахстан .
3. Обременение стратегических объектов правами третьих лиц либо их отчуждение возможно на основании решения Правительства Республики Казахстан о выдаче разрешения и в порядке, определяемом законодательным актом Республики Казахстан о государственном имуществе.
4. В случаях намерения гражданина или негосударственного юридического лица совершить сделку по отчуждению стратегического объекта, а также обращения взыскания на стратегический объект либо отчуждения стратегического объекта реабилитационным либо банкротным управляющим, либо реализации заложенного имущества (стратегического объекта) залогодержателем во внесудебном порядке, либо обращения взыскания на стратегический объект на основании судебного акта Республика Казахстан обладает приоритетным правом на приобретение стратегического объекта на условиях, определенных законодательным актом Республики Казахстан о государственном имуществе.
Рыночная стоимость стратегического объекта определяется в соответствии с законодательством Республики Казахстан об оценочной деятельности и законодательным актом Республики Казахстан о государственном имуществе.
Порядок использования приоритетного права на приобретение стратегического объекта определяется законодательным актом Республики Казахстан о государственном имуществе.
5. Если при обременении стратегического объекта правами третьих лиц либо его отчуждении нарушены требования пунктов 3 и 4 настоящей статьи, такие сделки ничтожны.
Сноска. Кодекс дополнен статьей 193-1 в соответствии с Законом РК от 07.08.2007 N 321 (вводится в действие со дня его официального опубликования); с изменениями, внесенными законами РК от 13.02.2009 N 135-IV (порядок введения в действие см. ст.3); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 25.03.2011 № 421-IV ( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 22.06.2012 № 21-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 194. Право собственности и иные вещные права на жилище
Особенности осуществления права собственности и иных вещных прав на жилище регулируются жилищным законодательством.
Статья 195. Вещные права лиц, не являющихся собственниками
1. К вещным правам наряду с правом собственности относятся: 1) право землепользования; 2) право хозяйственного ведения; 3) право оперативного управления;
3-1) право ограниченного целевого пользования чужой недвижимостью ( сервитут);
4) другие вещные права, предусмотренные настоящим Кодексом или иными законодательными актами.
2. К вещным правам применяются нормы о праве собственности, если иное не предусмотрено законодательством или не противоречит природе данного вещного права.
3. Переход права собственности на имущество к другому лицу не является основанием для прекращения других вещных прав на это имущество, если иное не предусмотрено законодательными актами Республики Казахстан.
Сноска. Статья 195 с изменениями, внесенными законами РК от 2 марта 1998 г. N 211; от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Глава 9. Право хозяйственного ведения
Статья 196. Право хозяйственного ведения государственного предприятия
1. Право хозяйственного ведения является вещным правом государственного предприятия, получившего имущество от государства как собственника и осуществляющего в пределах, установленных настоящим Кодексом и иными законодательными актами Республики Казахстан, права владения, пользования и распоряжения этим имуществом.
2. Особенности осуществления права хозяйственного ведения государственными предприятиями определяются законодательным актом Республики Казахстан о государственном имуществе.
Сноска. Статья 196 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 197. Объект права хозяйственного ведения
Объектом права хозяйственного ведения может быть любое имущество, если иное не предусмотрено законодательными актами Республики Казахстан.
Сноска. Статья 197 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 198. Приобретение и прекращение права хозяйственного ведения
1. Право хозяйственного ведения на имущество, в отношении которого собственником принято решение о закреплении его за уже созданным государственным предприятием, возникает у этого предприятия в момент закрепления имущества на самостоятельном балансе предприятия, если иное не установлено законодательством или решением собственника.
2. Плоды, продукция и доходы от использования имущества, находящегося в хозяйственном ведении, а также имущество, приобретенное предприятием по договорам или иным основаниям, поступают в хозяйственное ведение предприятия в порядке, установленном законодательством для приобретения права собственности.
3. Право хозяйственного ведения на имущество прекращается по основаниям и в порядке, предусмотренным законодательством для прекращения права собственности, а также в случаях правомерного изъятия имущества у предприятия по решению собственника.
Статья 199. Права собственника в отношении имущества, находящегося в хозяйственном ведении
Собственник имущества, находящегося в хозяйственном ведении, в соответствии с законодательными актами решает вопросы создания предприятия, определения предмета и целей его деятельности, его реорганизации и ликвидации, осуществляет контроль за использованием по назначению и сохранностью принадлежащего предприятию имущества.
Собственник имеет право на получение части чистого дохода от использования имущества, находящегося в хозяйственном ведении созданного им предприятия.
Сноска. В статью 199 внесены изменения - Законом РК от 11 июля 1997 г. N 154.
Статья 200. Условия осуществления имущественных прав государственного предприятия
1. Государственное предприятие, осуществляющее деятельность на праве хозяйственного ведения, если иное не предусмотрено законодательными актами, не вправе без письменного согласия собственника или уполномоченного им государственного органа:
1) отчуждать или иным способом распоряжаться (за исключением случаев, предусмотренных настоящей статьей), сдавать в долгосрочную аренду (свыше трех лет), предоставлять во временное безвозмездное пользование принадлежащие ему здания, сооружения, оборудование и другие основные средства предприятия;
2) создавать филиалы, представительства, учреждать совместно с частными предпринимателями предприятия и совместные производства, вкладывать в них свой производственный и денежный капитал;
2-1) распоряжаться принадлежащими ему акциями (за исключением случаев, предусмотренных настоящей статьей), а также дебиторской задолженностью;
3) предоставлять займы; 4) выдавать поручительство или гарантию по обязательствам третьих лиц.
2. Государственное предприятие, если иное не предусмотрено законодательными актами Республики Казахстан, самостоятельно распоряжается закрепленным за ним на праве хозяйственного ведения имуществом, не относящимся к основным средствам.
Государственное предприятие на праве хозяйственного ведения не вправе продавать и заключать сделки дарения в отношении имущества, относящегося к
основным средствам государственного предприятия, а также принадлежащих ему акций.
Сноска. Статья 200 с изменениями, внесенными законами РК от 11.07.1997 N 154; от 02.03.1998 N 211; от 21.05.2002 N 323; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 201. Распространение положений о праве собственности на отношения с участием государственных предприятий
На имущественные отношения с участием государственных предприятий распространяются положения настоящего Кодекса о праве собственности, если иное не вытекает из настоящего Кодекса и иных законодательных актов.
Глава 10. Право оперативного управления
Статья 202. Понятие и содержание права
1. Право оперативного управления является вещным правом учреждения, финансируемого за счет средств собственника, и казенного предприятия, получивших имущество от собственника и осуществляющих в пределах, установленных законодательными актами Республики Казахстан, в соответствии с целями своей деятельности, заданиями собственника и назначением имущества , права владения, пользования и распоряжения этим имуществом.
Примечание РЦПИ! Данная редакция пункта 2 действует с 01.01.2018 для городов районного
значения, сел, поселков, сельских округов с численностью населения более двух тысяч человек в соответствии с Законом РК от 11.07.2017 № 90-VI ( действующую редакцию до 01.01.2020 для городов районного значения, сел, поселков, сельских округов с численностью населения две тысячи и менее человек см. архивную версию от 25.12.2017 Гражданского кодекса РК от 27.12.1994 № 268-XIII).
2. Особенности осуществления права оперативного управления казенными предприятиями и государственными учреждениями определяются законами Республики Казахстан "О государственном имуществе" и "О местном государственном управлении и самоуправлении в Республике Казахстан".
Сноска. Статья 202 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 16.12.1998 N 320; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 11.07.2017 № 90-VI (порядок введения в действие см. пп.1) п.1 ст.2).
Статья 203. Приобретение и прекращение права оперативного управления
Приобретение и прекращение права оперативного управления осуществляется на условиях и в порядке, предусмотренных главами 13 и 14 настоящего Кодекса, если иное не установлено законодательными актами Республики Казахстан.
Сноска. Статья 203 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 204. Права собственника имущества, переданного в оперативное управление
1. Собственник имущества, находящегося в оперативном управлении, в соответствии с законодательными актами Республики Казахстан решает вопросы создания учреждения, казенного предприятия, определения предмета и целей его деятельности, обладает правом определять юридическую судьбу учреждения, казенного предприятия, содержание его деятельности.
2. Собственник осуществляет контроль за эффективностью использования и сохранностью учреждением, казенным предприятием переданного собственником имущества.
3. В случае, если учреждение создается несколькими собственниками, отношения между ними и права собственников на управление своим имуществом определяются учредительным договором или аналогичным соглашением.
Сноска. Статья 204 с изменениями, внесенными законами РК от 16.12.1998 № 320; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 205. Право собственника на изъятие и перераспределение имущества, переданного в оперативное управление
Собственник закрепленного за учреждением или казенным предприятием имущества вправе изъять это имущество либо перераспределить его между другими созданными им юридическими лицами по своему усмотрению, если иное не установлено законодательными актами Республики Казахстан.
Сноска. Статья 205 с изменениями, внесенными законами РК от 16.12.1998 № 320; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 206. Распоряжение имуществом учреждения
Учреждение не вправе самостоятельно отчуждать или иным способом распоряжаться закрепленным за ним имуществом и имуществом, приобретенным за счет средств, выделенных ему по смете.
Особенности осуществления государственными учреждениями приносящей доходы деятельности устанавливаются законодательными актами Республики Казахстан.
Сноска. Статья 206 в редакции Закона РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 207. Ответственность учредителя по долгам казенного предприятия и учреждения
Сноска. Заголовок статьи 207 с изменением, внесенным Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
1. Казенное предприятие отвечает по своим обязательствам находящимися в его распоряжении деньгами.
При недостаточности у казенного предприятия денег субсидиарную ответственность по его обязательствам несет Республика Казахстан или административно-территориальная единица средствами соответствующего бюджета.
2. Ответственность учреждения наступает в порядке, предусмотренном пунктом 1 статьи 44 настоящего Кодекса.
Сноска. Статья 207 в редакции Закона РК от 16.12.1998 N 320; с изменениями , внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 208. Переход права собственности на учреждение
При переходе права собственности на учреждение к другому лицу это учреждение сохраняет право оперативного управления на принадлежащее ему имущество.
Глава 11. Общая собственность
Статья 209. Понятие и основания возникновения общей собственности
1. Имущество, находящееся в собственности двух или нескольких лиц, принадлежит им на праве общей собственности.
2. Имущество может находиться в общей собственности с определением доли каждого из собственников в праве собственности (долевая собственность) или без определения таких долей (совместная собственность).
3. Общая собственность на имущество является долевой, за исключением случаев, когда законом предусмотрено образование совместной собственности на имущество.
4. Общая собственность возникает при поступлении в собственность двух или нескольких лиц имущества, которое не может быть разделено без изменения его назначения (неделимые вещи), либо не подлежит разделу в силу закона.
Общая собственность на делимое имущество возникает в случаях, предусмотренных законодательными актами или договором.
5. По соглашению участников совместной собственности, а при недостижении согласия - по решению суда на общее имущество может быть установлена долевая собственность этих лиц.
6. Собственность на недвижимое имущество может возникать в форме кондоминиума, при котором отдельные части недвижимости находятся в индивидуальной (раздельной) собственности граждан и (или) юридических лиц, а те части недвижимости, которые не находятся в раздельной собственности, принадлежат собственникам частей недвижимости на праве общей долевой собственности.
Доля каждого собственника в общем имуществе неотделима от его раздельной собственности на принадлежащую ему часть недвижимости.
Размер доли каждого собственника в общем имуществе и степень участия в расходах на его содержание зависят от размеров частей недвижимости, находящихся в индивидуальной (раздельной) собственности, если иное не предусмотрено законодательными актами или договором.
Особенности правового режима разных видов кондоминиума могут определяться законодательными актами.
7. Особенности правового режима общей долевой собственности на активы паевого инвестиционного фонда определяются законодательным актом Республики Казахстан об инвестиционных и венчурных фондах.
Сноска. Статья 209 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 07.07.2004 № 577; от 04.07.2018 № 174-VІ (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 210. Определение долей в праве долевой собственности
1. Если размер долей участников долевой собственности не может быть определен на основании законодательных актов и не установлен соглашением всех ее участников, доли считаются равными.
2. Соглашением всех участников долевой собственности может быть установлен порядок определения и изменения их долей в зависимости от вклада каждого из них в образование и приращение общего имущества.
Статья 211. Права участника долевой собственности, связанные с ее улучшением
1. Участник долевой собственности, осуществивший за свой счет с соблюдением установленного порядка использования общего имущества его неотделимые улучшения, имеет право на соответствующее увеличение своей доли в праве на общее имущество.
2. Отделимые улучшения общего имущества, если иное не предусмотрено соглашением участников долевой собственности, поступают в собственность того из участников, который их произвел.
Статья 212. Распоряжение имуществом, находящимся в долевой собственности
1. Распоряжение имуществом, находящимся в долевой собственности, осуществляется по соглашению всех ее участников.
2. Каждый участник долевой собственности вправе по своему усмотрению продать, подарить, завещать, заложить свою долю, либо распорядиться ею иным образом с соблюдением условий, предусмотренных статьей 216 настоящего Кодекса.
Статья 213. Владение и пользование имуществом, находящимся в долевой собственности
1. Владение и пользование имуществом, находящимся в долевой собственности, осуществляется по согласию всех ее участников, а при недостижении соглашения - в порядке, устанавливаемом судом.
2. Каждый участник долевой собственности имеет право на предоставление в его владение и пользование части общего имущества, соразмерной его доле, а при невозможности этого - вправе требовать от других участников, владеющих и пользующихся имуществом, приходящейся на его долю выплаты соответствующей денежной суммы или иной компенсации.
Статья 214. Плоды, продукция и доходы от использования имущества, находящегося в долевой собственности
Плоды, продукция и доходы от использования имущества, находящегося в долевой собственности, поступают в состав общего имущества. Последующее распределение плодов, продукции и доходов производится между участниками долевой собственности соразмерно их долям, если иное не предусмотрено соглашением между ними.
Статья 215. Расходы по содержанию имущества, находящегося в долевой собственности
Каждый участник долевой собственности обязан соразмерно со своей долей участвовать в уплате налогов, сборов и иных платежей по общему имуществу, а также в издержках по его содержанию и сохранению.
Статья 216. Преимущественное право покупки
1. При продаже доли в праве долевой собственности постороннему лицу остальные участники долевой собственности имеют преимущественное право покупки продаваемой доли по цене, за которую она продается, и на прочих равных условиях, кроме случая продажи с публичных торгов.
Публичные торги для продажи доли в праве долевой собственности при отсутствии согласия на это всех участников долевой собственности могут проводиться в случаях, предусмотренных пунктом 2 статьи 222 настоящего Кодекса, и в иных случаях, предусмотренных законодательными актами.
2. Продавец доли обязан известить в письменной форме остальных участников долевой собственности о намерении продать свою долю постороннему лицу с указанием цены и других условий, на которых продает ее. Если остальные участники долевой собственности откажутся от покупки или не приобретут продаваемую долю в праве собственности на недвижимое имущество в течение месяца, а в отношении прочего имущества - в течение десяти дней со дня получения извещения, продавец вправе продать свою долю любому лицу.
3. При продаже доли с нарушением преимущественного права покупки любой другой участник долевой собственности имеет право в течение трех месяцев требовать в суде перевода на него прав и обязанностей покупателя.
4. Уступка преимущественного права покупки доли не допускается. 5. Правила настоящей статьи применяются также при отчуждении доли по
договору мены.
6. Правила настоящей статьи не распространяются на случаи отчуждения стратегических объектов.
Сноска. Статья 216 с изменениями, внесенными Законом РК от 7 августа 2007 г. N 321 (вводится в действие со дня его официального опубликования).
Статья 217. Момент перехода доли в праве долевой собственности к приобретателю по договору
Доля в праве долевой собственности переходит к приобретателю по договору с момента заключения договора, если соглашением сторон не предусмотрено иное.
Момент перехода доли в праве долевой собственности по договору, подлежащему государственной регистрации или нотариальному удостоверению, определяется в соответствии с пунктом 2 статьи 238 настоящего Кодекса.
Статья 218. Раздел имущества, находящегося в долевой собственности, и выдел из него доли
1. Имущество, находящееся в долевой собственности, может быть разделено между ее участниками по соглашению между ними.
2. Участник долевой собственности вправе требовать выдела своей доли из общего имущества.
3. При недостижении участниками долевой собственности соглашения о способе и условиях раздела общего имущества или выдела доли одного из них участник долевой собственности вправе требовать выдела в натуре своей доли из общего имущества.
Если выдел доли в натуре не допускается законодательными актами или невозможен без несоразмерного ущерба имуществу, находящемуся в общей собственности, выделяющийся собственник имеет право на выплату ему стоимости его доли другими участниками долевой собственности.
4. Несоразмерность имущества, выделяемого в натуре участнику долевой собственности на основании настоящей статьи, его доле в праве собственности устраняется выплатой соответствующей денежной суммы или иной компенсацией.
Выплата участнику долевой собственности остальными сособственниками компенсации вместо выдела его доли в натуре допускается с его согласия. В случаях, когда доля соответствующего собственника является незначительной, не может быть реально выделена и он не имеет существенного интереса в
использовании общего имущества, суд может и при отсутствии согласия этого собственника обязать остальных участников долевой собственности выплатить ему компенсацию.
5. С получением компенсации в соответствии с пунктами 3 и 4 настоящей статьи собственник утрачивает право на долю в общем имуществе.
6. При невозможности раздела общего имущества либо выдела доли из него по правилам, изложенным в пунктах 3 и 4 настоящей статьи, суд принимает решение о продаже имущества с публичных торгов с последующим распределением вырученной суммы между участниками общей собственности соразмерно их долям.
Сноска. Статья 218 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 219. Общая совместная собственность
1. Общая совместная собственность существует в виде: 1) общей собственности супругов; 2) общей собственности членов крестьянского хозяйства; 3) общей собственности на приватизированное жилище.
2. Законодательными актами могут быть предусмотрены и другие виды общей совместной собственности.
3. Общая совместная собственность устанавливается и существует, если договором между ее участниками не предусмотрено иное.
Сноска. Статья 219 с изменениями, внесенными Законом РК от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования).
Статья 220. Владение, пользование и распоряжение имуществом, находящимся в совместной собственности
1. Участники совместной собственности, если иное не предусмотрено соглашением между ними, сообща владеют и пользуются общим имуществом.
2. Распоряжение имуществом, находящимся в совместной собственности, осуществляется по согласию всех участников, которое предполагается независимо от того, кем из участников совершена сделка по распоряжению имуществом.
3. Каждый из участников совместной собственности вправе совершать сделки по распоряжению общим имуществом, если иное не вытекает из соглашения всех участников. Совершенная одним из участников совместной собственности сделка, связанная с распоряжением общим имуществом, может быть признана
недействительной по требованию остальных участников по мотивам отсутствия у участника, совершившего сделку, необходимых полномочий только в случае, если будет доказано, что другая сторона в сделке знала или заведомо должна была знать об этом.
При совершении сделок, требующих нотариального удостоверения или государственной регистрации, согласие других участников совместной собственности на совершение сделки должно быть подтверждено в нотариальном порядке.
4. Пункты 1-3 настоящей статьи применяются, если иное для отдельных видов совместной собственности не установлено настоящим Кодексом или иными законодательными актами.
Статья 221. Раздел имущества, находящегося в совместной собственности , и выдел из него доли
1. Раздел общего имущества между участниками совместной собственности, а также выдел доли одного из них, может быть осуществлен при условии предварительного определения доли каждого из участников в праве на общее имущество.
2. При разделе общего имущества и выделе из него доли, если иное не предусмотрено законодательными актами или соглашением участников, их доли признаются равными.
3. Основания и порядок раздела общего имущества и выдела из него доли определяются по правилам статьи 218 настоящего Кодекса, поскольку иное для отдельных видов совместной собственности не установлено настоящим Кодексом, другими законодательными актами и не вытекает из существа отношений участников совместной собственности.
Сноска. В статью 221 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 222. Обращение взыскания на долю в общем имуществе
1. Кредитор участника долевой или совместной собственности при недостаточности у последнего другого имущества вправе предъявить требование о выделении доли должника в общем имуществе для обращения на нее взыскания.
2. В случаях отказа остальных участников общей собственности от приобретения доли должника кредитор вправе требовать по суду обращения взыскания на долю должника в праве общей собственности путем продажи этой доли с публичных торгов.
3. Если в таких случаях выделение доли в натуре невозможно либо против этого возражают остальные участники долевой или совместной собственности, кредитор вправе требовать продажи должником своей доли остальным участникам общей собственности по цене, соразмерной рыночной стоимости этой доли, с обращением вырученных от продажи средств в погашение долга.
Статья 223. Общая собственность супругов
1. Имущество, нажитое супругами во время брака, является их совместной собственностью, если договором между ними не предусмотрено, что это имущество является долевой собственностью супругов либо принадлежит одному или в соответствующих частях каждому из супругов на праве собственности.
2. Имущество, принадлежавшее супругам до вступления в брак, а также полученное ими во время брака в дар или в порядке наследования, является собственностью каждого из них.
Вещи индивидуального пользования (одежда, обувь и т.п.), за исключением драгоценностей и других предметов роскоши, хотя и приобретенные во время брака за счет общих средств супругов, признаются собственностью того супруга, который ими пользовался.
Имущество каждого из супругов может быть признано их совместной собственностью, если будет установлено, что в течение брака за счет общего имущества супругов были произведены вложения, значительно увеличившие стоимость этого имущества (капитальный ремонт, реконструкция, переоборудование и т.п.).
3. По обязательствам одного из супругов взыскание может быть обращено лишь на имущество, находящееся в его собственности, а также на его долю в общем имуществе супругов, которая причиталась бы ему при разделе этого имущества.
4. Особенности права общей совместной собственности супругов определяются законодательством о браке и семье Республики Казахстан.
Сноска. В статью 223 внесены изменения - Законом РК от 2 марта 1998 г. N 211 .
Статья 224. Собственность крестьянского или фермерского хозяйства
1. Имущество крестьянского хозяйства принадлежит его членам на праве совместной собственности, если договором между ними не установлено иное.
Имущество фермерского хозяйства, организованного в форме простого товарищества на основе договора о совместной деятельности, принадлежит его членам на праве общей долевой собственности.
Имущество фермерского хозяйства, основанного на личном предпринимательстве, принадлежит ему на праве частной собственности.
2. В собственности членов крестьянского или фермерского хозяйства могут находиться земельные участки, насаждения на земельном участке, в том числе насаждения частного лесного фонда, дикие животные, разведенные и содержащиеся в неволе и (или) полувольных условиях, хозяйственные и иные постройки, мелиоративные и другие сооружения, продуктивный и рабочий скот, птица, сельскохозяйственная и иная техника и оборудование, транспортные средства, инвентарь и другое имущество, переданные членами хозяйства и (или) приобретенные для хозяйства на общие средства его членов.
3. Плоды, продукция и доходы, полученные в результате деятельности крестьянского или фермерского хозяйства, являются общим имуществом членов крестьянского или фермерского хозяйства и используются по соглашению между ними.
Сноска. Статья 224 в редакции Закона РК от 12 января 2007 года N 225 ( вводится в действие со дня его официального опубликования).
Статья 225. Раздел имущества крестьянского или фермерского хозяйства
1. При прекращении крестьянского или фермерского хозяйства в связи с выходом из него всех его членов или по иным основаниям общее имущество подлежит разделу по правилам, предусмотренным статьями 218 и 221 настоящего Кодекса.
2. Средства производства, принадлежащие крестьянскому или фермерскому хозяйству, при выходе одного из его членов из хозяйства разделу не подлежат. Вышедший из хозяйства имеет право на получение денежной компенсации, соразмерной его доле в общей собственности на это имущество.
3. В случаях, предусмотренных пунктами 1 и 2 настоящей статьи, доли членов крестьянского или фермерского хозяйства в праве совместной собственности на имущество хозяйства признаются равными, если соглашением между ними не установлено иное.
Сноска. Статья 225 с изменениями, внесенными Законом РК от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 226. Правовой режим имущества при реорганизации крестьянского или фермерского хозяйства в хозяйственное товарищество или кооператив
1. Членами крестьянского или фермерского хозяйства на базе имущества хозяйства может быть создано хозяйственное товарищество или производственный кооператив. Такое реорганизованное крестьянское или фермерское хозяйство как юридическое лицо обладает правом собственности на имущество, переданное ему в форме вкладов и других взносов членами крестьянского или фермерского хозяйства, а также на имущество, полученное в результате его деятельности и приобретенное по иным основаниям, не противоречащим законодательству.
2. Размер вкладов членов крестьянского или фермерского хозяйства, являющихся участниками товарищества или членами кооператива, устанавливается исходя из их долей в праве общей собственности на имущество крестьянского или фермерского хозяйства, определяемых в порядке, предусмотренном статьей 218 или пунктом 3 статьи 225 настоящего Кодекса.
Сноска. Статья 226 с изменениями, внесенными Законом РК от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 227. Общая собственность на приватизированное жилище
Выкупленное или приобретенное безвозмездно нанимателем в соответствии с законодательством Республики Казахстан о государственном имуществе и жилищных отношениях жилище в домах государственного жилого фонда, переходит в совместную собственность нанимателя и постоянно проживающих с ним членов семьи, в том числе несовершеннолетних и временно отсутствующих, если иное не предусмотрено договором между ними.
Особенности права совместной собственности на приватизированное жилище определяются законодательными актами о жилищных отношениях.
Сноска. Статья 227 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Глава 12. Договор о совместной деятельности (простое товарищество)
Статья 228. Простое товарищество
1. Простое товарищество образуется на основе договора о совместной деятельности.
По договору о совместной деятельности (договору простого товарищества) стороны обязуются совместно действовать для получения доходов или достижения иной не противоречащей закону цели.
Простое товарищество не является юридическим лицом. 2. Договор о совместной деятельности (договор простого товарищества)
заключается между гражданами, гражданами и юридическими лицами, между юридическими лицами (консорциум).
3. Обязательства участников простого товарищества, связанные с договором о совместной деятельности, перед третьими лицами являются солидарными, если договором о совместной деятельности не предусмотрено иное.
Сноска. В статью 228 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 229. Ведение общих дел участников договора
Ведение общих дел участников договора о совместной деятельности осуществляется по их общему согласию. По соглашению между собой они могут поручить руководство совместной деятельностью и ведение общих дел одному из участников, действующему в этом случае на основании доверенности, выданной остальными участниками договора, или третьему лицу в случае, предусмотренном статьей 823 настоящего Кодекса.
Сноска. Статья 229 в редакции Закона РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 230. Общее имущество участников договора
1. Для достижения своих целей участники договора о совместной деятельности вносят взносы деньгами или другим имуществом либо путем трудового вклада.
2. Денежные или иные имущественные взносы участников договора, а также имущество, созданное или приобретенное в результате их совместной деятельности, являются их общей долевой собственностью.
3. (исключен) 4. На имущество участников договора распространяются нормы настоящего
Кодекса об общей долевой собственности, если иное не предусмотрено нормами
настоящей главы, другими законодательными актами или договором о совместной деятельности.
Сноска. В статью 230 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 231. Общие расходы и убытки участников договора
Порядок покрытия общих расходов по совместной деятельности и возникших в ее результате убытков определяется договором участников. Если договором такой порядок не предусмотрен, общие расходы и убытки покрываются за счет общего имущества участников договора, а недостающие суммы раскладываются между ними пропорционально их долям в этом имуществе.
Сноска. В статью 231 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 232. Передача права и отказ от участия в совместной деятельности
1. Передача права на участие в совместной деятельности может быть осуществлена только с согласия участников договора о совместной деятельности (договора простого товарищества).
2. Участник договора о совместной деятельности (договора простого товарищества) имеет право по своему усмотрению отказаться от участия в совместной деятельности.
3. Убытки участников, вызванные отказом кого-либо из них от участия в совместной деятельности, взыскиваются в полном объеме, если договором о совместной деятельности (договором простого товарищества) не предусмотрено иное.
Статья 233. Консорциум
1. Консорциум - это временный добровольный равноправный союз ( объединение) на основе договора о совместной хозяйственной деятельности, в котором юридические лица объединяют те или иные ресурсы и координируют усилия для решения конкретных хозяйственных задач.
2. Участники консорциума сохраняют свою хозяйственную самостоятельность и могут принимать участие в деятельности других консорциумов, ассоциаций.
Отношения между участниками консорциума строятся на договорной основе. 3. Управление консорциумом осуществляется в соответствии с
консорциальным соглашением участников консорциума.
4. Участники консорциума несут солидарную ответственность по обязательствам, связанным с деятельностью консорциума, если иное не оговорено консорциальным соглашением.
5. Консорциум прекращает свою деятельность по выполнении поставленной задачи или по решению его участников.
Сноска. В статью 233 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 234. Правила об отдельных видах совместной деятельности
Отдельные виды совместной деятельности регулируются в соответствии с настоящим Кодексом законодательством Республики Казахстан.
Глава 13. Приобретение права собственности и иных вещных прав
Статья 235. Основания приобретения права собственности
1. Право собственности на новую вещь принадлежит лицу, изготовившему или создавшему ее, если иное не предусмотрено договором или законодательством.
Право собственности на плоды, продукцию, доходы, полученные в результате использования имущества, приобретается в соответствии со статьей 123 настоящего Кодекса.
2. Право собственности на имущество, которое имеет собственника, может быть приобретено другим лицом на основании договора купли-продажи, мены, дарения или иной сделки об отчуждении этого имущества.
В случае смерти гражданина право собственности на принадлежащее ему имущество переходит по наследству к другим лицам в соответствии с завещанием или законом.
В случае реорганизации юридического лица право собственности на принадлежащее ему имущество переходит к юридическим лицам - правопреемникам реорганизованного юридического лица (статья 46 настоящего Кодекса).
Отчуждение имущества от собственника другому лицу помимо воли собственника не допускается, кроме случаев, предусмотренных настоящим Кодексом.
3. В случаях и в порядке, предусмотренных настоящим Кодексом, лицо может приобрести право собственности на имущество, не имеющее
собственника, на имущество, собственник которого неизвестен, либо на имущество, от которого собственник отказался или на которое он утратил право собственности по иным основаниям.
3-1. В случаях и порядке, которые предусмотрены законами Республики Казахстан, государство приобретает право собственности на имущество при реквизиции, национализации, принудительном изъятии земельного участка, в том числе для государственных нужд, а также при отчуждении недвижимого имущества в связи с изъятием земельного участка.
4. Члены потребительского кооператива (жилищного, жилищно-строительного, дачного, гаражного или иного), другие лица, имеющие право на паенакопления, полностью внесшие свой паевой взнос за квартиру, дачу , гараж, иное помещение, предоставленное этим лицам кооперативом в пользование, приобретают право собственности на указанное имущество.
Сноска. Статья 235 с изменением, внесенным Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 236. Возникновение права собственности на вновь создаваемое недвижимое имущество
1. Право собственности на вновь созданное недвижимое имущество возникает с момента государственной регистрации.
2. Если законодательными актами или договором предусмотрена приемка законченных строительством объектов, то создание соответствующего имущества считается завершенным с момента такой приемки.
3. Исключен Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
4. До момента государственной регистрации права на вновь созданное недвижимое имущество к имуществу применяются правила о праве собственности на материалы и другое имущество, из которого недвижимое имущество создается.
Сноска. Статья 236 с изменениями, внесенными Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 237. Переработка
1. Поскольку иное не предусмотрено договором, право собственности на новую движимую вещь, изготовленную лицом путем переработки не принадлежащих ему материалов, приобретается собственником материалов.
Однако, если стоимость переработки существенно превышает стоимость материалов, право собственности на новую вещь приобретает лицо, которое, действуя добросовестно, осуществило переработку для себя.
2. Если иное не предусмотрено договором, собственник материалов, приобретший право собственности на изготовленную из них вещь, обязан компенсировать стоимость переработки осуществившему ее лицу, а в случае приобретения права собственности на новую вещь этим лицом, последнее соответственно обязано возместить собственнику материалов их стоимость.
3. Собственник материалов, утративший их в результате недобросовестных действий лица, осуществившего переработку, вправе требовать передачи новой вещи в его собственность и возмещения причиненных ему убытков.
Статья 238. Момент возникновения права собственности у приобретателя по договору
1. Право собственности у приобретателя имущества по договору возникает с момента передачи вещи, если иное не предусмотрено законодательными актами или договором.
1-1. Если право собственности у приобретателя по договору подлежит государственной регистрации, то право собственности приобретателя возникает с момента такой регистрации, если иное не предусмотрено законодательными актами.
2. Если договор об отчуждении имущества подлежит государственной регистрации или нотариальному удостоверению, право собственности у приобретателя возникает с момента регистрации или нотариального удостоверения, а при необходимости как нотариального удостоверения, так и государственной регистрации договора - с момента его регистрации.
Сноска. Статья 238 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 239. Передача вещей
1. Передачей признается вручение вещей приобретателю, а равно сдача транспортной организации для отправки приобретателю и сдача на почту для
пересылки приобретателю вещей, отчужденных без обязательства доставки, если иное не предусмотрено законодательством или договором.
2. Если к моменту заключения договора об отчуждении вещи она уже находится во владении приобретателя, вещь признается переданной ему с этого момента. К передаче вещей приравнивается передача коносамента или иного распорядительного документа на вещи.
Статья 240. Приобретательная давность
1. Гражданин или юридическое лицо, не являющееся собственниками имущества, но добросовестно, открыто и непрерывно владеющие как своим собственным недвижимым имуществом в течение семи лет, либо иным имуществом не менее пяти лет, приобретает право собственности на это имущество (приобретательная давность).
Право собственности на недвижимое и иное имущество, подлежащее государственной регистрации, возникает у лица, приобретшего это имущество в силу приобретательной давности, с момента такой регистрации.
2. До приобретения на имущество права собственности гражданин или юридическое лицо, владеющие им как своим собственным, имеют право на защиту своего владения против третьих лиц, не являющихся собственниками имущества, а также не имеющих прав на владение им в силу иного предусмотренного законодательными актами или договором основания.
3. Гражданин или юридическое лицо, которые ссылаются на давность владения, могут присоединить к своему владению все то время, в течение которого владел данной вещью тот, чьими правопреемниками они являются.
4. Течение срока приобретательной давности начинается с момента завладения вещью.
5. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Сноска. Статья 240 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 22.07.2011 № 479-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 241. Обращение в собственность общедоступных для сбора либо добычи вещей
В случае, когда в соответствии с законодательством, местным обычаем или общим разрешением, данным собственником, в лесах, водоемах или на другой территории допускается сбор ягод, лов рыбы, охота на животных, сбор или добыча других предметов - право собственности на соответствующие вещи приобретает лицо, осуществившее их сбор или добычу.
Статья 242. Бесхозяйные вещи
1. Бесхозяйной является вещь, которая не имеет собственника или собственник которой неизвестен, либо вещь, от права собственности на которую собственник отказался.
2. Если это не исключается правилами о приобретении права собственности на вещи, от которых собственник отказался (статья 243 настоящего Кодекса), о находке (статья 245 настоящего Кодекса), о безнадзорных животных (статья 246 настоящего Кодекса) и клада (статья 247 настоящего Кодекса), право собственности на бесхозяйные движимые вещи может быть приобретено в силу приобретательной давности (статья 240 настоящего Кодекса).
3. Бесхозяйные недвижимые вещи принимаются на учет органом, осуществляющим государственную регистрацию прав на недвижимое имущество, по заявлению местных исполнительных органов городов республиканского значения, столицы, районов, городов областного значения, на территории которых они выявлены. По истечении года со дня постановки бесхозяйной недвижимой вещи на учет местный исполнительный орган обращается в суд с требованием о признании этой вещи поступившей в коммунальную собственность.
В случае, если собственник отказывается от права собственности путем объявления об этом, местный исполнительный орган обращается в суд с требованием о признании этой вещи поступившей в коммунальную собственность с момента объявления об отказе.
Организация работы по учету, хранению, оценке, дальнейшему использованию и реализации имущества, поступившего в коммунальную собственность, осуществляется местным исполнительным органом.
Не могут быть поставлены на учет и переданы в коммунальную собственность бесхозяйные недвижимые вещи, находящиеся у граждан или негосударственных юридических лиц, которые владеют таким имуществом как своим собственным.
Порядок учета, хранения, оценки, дальнейшего использования и реализации имущества, поступившего в государственную собственность, определяется Правительством Республики Казахстан.
В любое время до возникновения права собственности другого лица на такое имущество собственник вправе обратиться с заявлением о снятии с учета принадлежащей ему недвижимой вещи как бесхозяйной и вновь принять ее в свое фактическое владение.
Сноска. Статья 242 с изменениями, внесенными законами РК от 24 декабря 2001 г. N 276 (вводится в действие с 1 января 2002 г.); от 20 декабря 2004 г. N 13 (вводится в действие с 1 января 2005 г.); от 22 июня 2006 года N 147; от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 22.07.2011 № 479-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 243. Движимые вещи, от которых собственник отказался
1. Движимые вещи, брошенные собственником или иным образом оставленные им с целью отказа от права собственности на них (брошенные вещи ), могут быть обращены другими лицами в свою собственность в порядке, предусмотренном пунктом 2 настоящей статьи.
2. Лицо, в собственности, владении или пользовании которого находится земельный участок, где находится брошенная вещь, стоимость которой явно ниже суммы, соответствующей двадцати месячным расчетным показателям, либо брошенные лом металлов, бракованная продукция, имеет право обратить эти вещи в свою собственность, приступив к их использованию или совершив иные действия, свидетельствующие об обращении вещи в собственность.
Другие брошенные вещи поступают в собственность лица, вступившего во владение ими, если по заявлению этого лица они признаны судом безхозяйными.
Сноска. Статья 243 в новой редакции - Закон РК от 2 марта 1998 г. N 211.
Статья 244. Самовольная постройка
1. Самовольной постройкой являются жилой дом, другое строение, сооружение или иное недвижимое имущество, созданные на не сформированной в земельные участки земле, принадлежащей государству, на земельном участке, который не принадлежит лицу, осуществившему постройку, а также созданные без получения на это разрешений, необходимых в соответствии с земельным
законодательством Республики Казахстан, законодательством Республики Казахстан об архитектурной, градостроительной и строительной деятельности в Республике Казахстан и иным законодательством Республики Казахстан.
2. Лицо, осуществившее самовольную постройку, не приобретает на нее право собственности. Оно не вправе распоряжаться постройкой - продавать, дарить, сдавать в аренду, совершать другие сделки.
Самовольная постройка подлежит сносу осуществившим ее лицом либо за его счет, кроме случаев, предусмотренных пунктами 3 и 4 настоящей статьи.
3. Право собственности на самовольную постройку может быть признано судом за лицом, осуществившим постройку на не принадлежащем ему земельном участке, при условии, что данный участок будет в установленном порядке предоставлен этому лицу под размещение возведенной постройки.
Право собственности застройщика на самовольную постройку на не принадлежащем ему земельном участке, за исключением земель, принадлежащих государству, может признаваться судом при наличии согласия на это собственника земельного участка с выплатой последнему компенсации при условии соответствия постройки требованиям законодательства Республики Казахстан об архитектурной, градостроительной и строительной деятельности.
Право собственности на самовольную постройку может быть признано судом также за лицом, в законном пользовании которого находится земельный участок, где осуществлена постройка. В этом случае лицо, за которым признано право собственности на постройку, возмещает осуществившему ее лицу расходы на постройку в размере, определенном судом.
Право собственности на самовольную постройку не может быть признано за указанными лицами, если сохранение постройки повлечет нарушения прав и охраняемых законом интересов других лиц либо будет создавать угрозу жизни и здоровью граждан.
4. С учетом социально-экономической целесообразности самовольная постройка, возведенная лицом на земельных участках (не сформированной в земельные участки земле), принадлежащих государству и не находящихся в землепользовании, передается в коммунальную собственность с возмещением расходов на постройку в размере, определенном судом.
При осуществлении самовольной постройки на земельном участке, находящемся в землепользовании государственных землепользователей, с учетом социально-экономической целесообразности самовольная постройка передается в коммунальную собственность с возмещением расходов на постройку в размере, определенном судом, из бюджетных средств.
Сноска. Статья 244 с изменениями, внесенными законами РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования);
от 27.04.2012 № 15-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 245. Находка
1. Нашедший потерянную вещь обязан немедленно уведомить об этом лицо, потерявшее ее, или собственника вещи или кого-либо из других известных ему лиц, имеющих право получить ее, и возвратить ему найденную вещь.
Если вещь найдена в помещении или на транспорте, она подлежит сдаче лицу , представляющему владельца этого помещения или транспорта. В таком случае этот владелец приобретает права и несет обязанности лица, нашедшего вещь.
2. Если лицо, имеющее право получить найденную вещь, или его местопребывание неизвестно, нашедший вещь обязан заявить о находке в органы внутренних дел или местные исполнительные органы городов республиканского значения, столицы, районов, городов областного значения.
3. Нашедший вещь вправе хранить ее у себя либо сдать на хранение в органы внутренних дел, местные исполнительные органы городов республиканского значения, столицы, районов, городов областного значения или указанному ими лицу. Скоропортящаяся вещь или вещь, издержки по хранению которой несоизмеримы с ее стоимостью, может быть реализована нашедшим вещь с получением письменных доказательств, удостоверяющих сумму выручки. Деньги, вырученные от продажи найденной вещи, подлежат хранению и возврату лицу, управомоченному на получение вещи, или передаче в собственность другим лицам в порядке и на условиях, установленных для самой этой вещи.
Нашедший вещь отвечает за ее утрату или порчу лишь в случае его умысла или грубой неосторожности и в пределах стоимости этой вещи.
4. Если по истечении шести месяцев с момента заявления о находке органам внутренних дел или местным исполнительным органам городов республиканского значения, столицы, районов, городов областного значения лицо, управомоченное на получение утерянной вещи, не будет установлено и не заявит о своем праве на вещь лицу, ее нашедшему, либо органам внутренних дел или местным исполнительным органам городов республиканского значения, столицы, районов, городов областного значения, нашедший вещь приобретает право собственности на нее.
Если нашедший вещь откажется от приобретения найденной вещи в собственность, она переходит в коммунальную собственность.
5. Нашедший и возвративший вещь лицу, управомоченному на ее получение, имеет право получить от этого лица, а в случае перехода вещи в коммунальную собственность - от соответствующего местного исполнительного органа возмещение необходимых расходов, связанных с хранением, сдачей, реализацией вещи, и затрат на обнаружение лица, управомоченного на получение вещи.
6. Нашедший вещь имеет право на получение вознаграждения от лица, управомоченного на получение вещи, в размере тридцати процентов от стоимости вещи. Если найденная вещь представляет ценность только для лица, управомоченного на ее получение, то размер вознаграждения определяется по оценке, произведенной сторонами.
Право на вознаграждение не возникает, если нашедший вещь не исполнил свою обязанность заявить о находке или совершил иные действия, чтобы утаить находку.
Сноска. Статья 245 с изменениями, внесенными законами РК от 20.12.2004 N 13 (вводится в действие с 01.01.2005); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 246. Безнадзорные животные
1. Задержавший безнадзорный или пригульный скот и других домашних или прирученных животных обязан возвратить их собственнику, а если он или его местопребывание неизвестны, не позднее трех дней с момента такого задержания заявить об обнаруженных животных в органы внутренних дел или местные исполнительные органы городов республиканского значения, столицы, районов, городов областного значения, которые принимают меры к розыску собственника.
На период розыска собственника животных они могут быть оставлены лицом, задержавшим животных, у него на содержании и в пользовании, либо сданы им на содержание и в пользование другому лицу, имеющему необходимые условия для этого. По просьбе лица, задержавшего животных, подыскание лица, имеющего необходимые условия для их содержания и пользования, и передачу им животных осуществляют местные исполнительные органы городов республиканского значения, столицы, районов, городов областного значения.
2. Лицо, задержавшее животных, и лицо, которому они переданы на содержание и в пользование, отвечают за гибель и порчу животных лишь при наличии вины и в пределах стоимости этих животных.
3. Если в течение шести месяцев с момента заявления о задержании рабочего и крупного рогатого скота и двух месяцев - других домашних животных их собственник не будет обнаружен и не заявит о своем праве на них, право
собственности на этих животных переходит к лицу, у которого они находились на содержании и в пользовании.
При отказе этого лица от приобретения в собственность содержавшихся у него животных, они поступают в коммунальную собственность и используются в порядке, определяемом соответствующими местными исполнительными органами городов республиканского значения, столицы, районов, городов областного значения.
4. В случае возврата животных собственнику лицо, задержавшее животных, и лицо, у которого они находились на содержании и в пользовании, имеют право получить от этого собственника возмещение своих расходов, связанных с содержанием животных, с зачетом выгод, извлеченных от пользования ими.
5. Лицо, задержавшее безнадзорный или пригульный скот и других домашних или прирученных животных, имеет право потребовать от их собственника выплаты вознаграждения в соответствии с пунктом 6 статьи 245 настоящего Кодекса.
6. В случае явки прежнего собственника животных после их перехода в собственность другого лица собственник вправе при наличии обстоятельств, свидетельствующих о сохранении к нему привязанности со стороны этих животных или о жестоком либо ином ненадлежащем обращении с ними нового собственника, требовать их возврата ему на условиях, определяемых по соглашению с новым собственником, а при недостижении согласия - судом.
Сноска. Статья 246 с изменениями, внесенными законами РК от 20.12.2004 N 13 (вводится в действие с 01.01.2005); от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 247. Клад
1. Клад, то есть зарытые в земле или сокрытые другим способом деньги или иные ценные предметы, собственник которых не может быть установлен либо в силу законодательства Республики Казахстан утратил на них право, поступает в собственность в равных долях собственнику земельного участка или собственнику недвижимой вещи, в которой клад был сокрыт, и лицу, которое обнаружило клад, если договором между ними не установлено иное.
При обнаружении клада лицом, производившим раскопки или поиски ценностей без согласия на это пользователя земельного участка ( землепользователя) или собственника недвижимой вещи, где клад был сокрыт, клад подлежит передаче собственнику.
2. В случае обнаружения клада, содержащего вещи, относящиеся к культурным ценностям, они подлежат передаче в собственность Республики Казахстан. При этом собственник земельного участка или собственник недвижимости, в которой был обнаружен такой клад, и лицо, обнаружившее клад , имеют право на получение вознаграждения в размере пятидесяти процентов от стоимости этого клада. Вознаграждение распределяется между этими лицами применительно к правилам, предусмотренным пунктом 1 настоящей статьи.
Сноска. Статья 247 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 248. Приобретение имущества, изъятого у собственника
Если лицо в порядке и на условиях, установленных законодательными актами , приобрело имущество, изъятое у собственника на законных основаниях, это лицо приобретает право собственности на имущество.
Глава 14. Прекращение права собственности и иных вещных прав
Статья 249. Основания прекращения права собственности
1. Право собственности прекращается при отчуждении собственником своего имущества другим лицам, отказе собственника от права собственности, гибели или уничтожения имущества и утрате права собственности на имущество в иных случаях, предусмотренных законодательными актами.
2. Принудительное отчуждение у собственника имущества не допускается, кроме случаев:
1) обращения взыскания на имущество по обязательствам собственника; 2) принудительного отчуждения имущества, которое в силу законодательных
актов Республики Казахстан не может принадлежать данному лицу; 3) реквизиции; 4) конфискации; 5) принудительного отчуждения недвижимого имущества в связи с изъятием
земельного участка; 6) изъятия бесхозяйственно содержащихся памятников истории и культуры,
культурных ценностей; 7) национализации;
8) продажи имущества с публичных торгов по решению суда в случае невозможности раздела общего имущества либо выдела доли из него в соответствии со статьей 218 настоящего Кодекса.
3. Имущество, находящееся в государственной собственности, отчуждается в частную собственность:
1) граждан и юридических лиц в случаях, на условиях и в порядке, которые предусмотрены законодательным актом Республики Казахстан о государственном имуществе;
2) путем передачи объектов государственной собственности в оплату ( формирование или увеличение) уставных капиталов юридических лиц;
3) в иных случаях, прямо предусмотренных законами Республики Казахстан. 3-1. Объектом отчуждения не может быть имущество, которое в соответствии
с законами Республики Казахстан может находиться только в государственной собственности, а также имущество, находящееся в государственной собственности и не подлежащее отчуждению в соответствии с актами Президента Республики Казахстан.
4. В случае принятия Закона Республики Казахстан об обращении в государственную собственность имущества, находящегося в частной собственности граждан и юридических лиц (национализация), им возмещаются убытки в порядке, установленном статьей 266 настоящего Кодекса.
Сноска. Статья 249 с изменениями, внесенными законами РК от 11.12.2008 N 102-IV (порядок введения в действие см. ст.2); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 250. Отказ от права собственности
Гражданин или юридическое лицо может отказаться от права собственности на принадлежащее ему имущество, объявив об этом в устной или письменной форме либо совершив другие действия (бездействие), определенно свидетельствующие об его устранении от владения, пользования и распоряжения имуществом без намерения сохранить какие-либо права на это имущество.
Отказ от права собственности должен быть правомерным, добровольным и указывающим, что собственник отказывается от владения, пользования, распоряжения имуществом.
Отказ от права собственности является волеизъявлением собственника. Государство и его органы не вправе отказаться от права собственности, за исключением случаев, установленных законом.
Отказ от права собственности не влечет прекращения прав и обязанностей собственника в отношении соответствующего имущества до момента приобретения права собственности на данное имущество другим лицом.
Сноска. Статья 250 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 251. Обращение взыскания на имущество собственника
1. Обращение взыскания на имущество по обязательствам собственника производится в судебном порядке, если иное не предусмотрено законодательными актами Республики Казахстан или договором.
2. Право собственности на имущество, на которое обращается взыскание, прекращается у собственника с момента возникновения права собственности на изъятое имущество у лица, к которому право собственности переходит в порядке , предусмотренном законодательством.
Сноска. Статья 251 с изменениями, внесенными законами РК от 2 марта 1998 г. N 211; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 252. Прекращение права собственности лица, которому в силу законодательных актов имущество не может принадлежать
1. Если по основаниям, допускаемым законодательными актами, в собственности лица оказалось имущество, которое не может ему принадлежать в силу законодательных актов, это имущество должно быть отчуждено собственником в течение одного года с момента возникновения права собственности на данное имущество, если иные сроки не предусмотрены законодательными актами. В случае, если имущество не будет отчуждено собственником в указанный срок, оно по решению суда подлежит принудительному отчуждению с возмещением собственнику стоимости имущества за вычетом затрат по его отчуждению.
2. Если в собственности гражданина или юридического лица по основаниям, допускаемым законодательными актами, окажется вещь, на приобретение которой необходимо особое разрешение, а в его выдаче собственнику отказано, эта вещь подлежит отчуждению в порядке, установленном для имущества, которое не может принадлежать данному собственнику.
Статья 253. Реквизиция
1. В случае стихийных бедствий, аварий, эпидемий, эпизоотий, в период действия военного положения или в военное время и при иных обстоятельствах, носящих чрезвычайный характер, имущество в интересах общества по решению государственных органов может быть изъято у собственника в порядке и на условиях, установленных законами Республики Казахстан, с выплатой ему стоимости имущества (реквизиция).
2. Оценка, по которой собственнику была возмещена стоимость реквизированного имущества, может быть оспорена им в судебном порядке.
3. Лицо, имущество которого реквизировано, вправе при прекращении действия обстоятельств, в связи с которыми произведена реквизиция, требовать по суду возврата ему сохранившегося имущества.
Сноска. Статья 253 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 254. Конфискация
В случаях, предусмотренных законодательными актами Республики Казахстан, имущество может быть безвозмездно изъято у собственника в судебном порядке в виде санкции за совершение административного или уголовного правонарушения (конфискация).
Сноска. Статья 254 в редакции Закона РК от 03.07.2014 № 227-V (вводится в действие с 01.01.2015).
Статья 255. Прекращение права собственности на недвижимое имущество в связи с изъятием земельного участка и других природных ресурсов
Сноска. Заголовок статьи 255 в редакции Закона РК от 25.03.2011 № 421-IV ( вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
1. Прекращение права собственности на недвижимость в связи с решением государственного органа, не направленным непосредственно на изъятие имущества у собственника, в том числе решением об изъятии земельного участка , на котором находятся принадлежащие собственнику дом, иные строения, сооружения или насаждения, допускается лишь в случаях и порядке, установленных законодательными актами, с представлением собственнику
равноценного имущества и возмещением иных понесенных убытков или возмещением ему в полном объеме убытков, причиненных прекращением права собственности.
2. При несогласии собственника с решением, влекущим прекращение права собственности, оно не может быть осуществлено до разрешения спора в судебном порядке. При рассмотрении спора решаются также все вопросы возмещения собственнику причиненных убытков.
3. Правила настоящей статьи соответственно применяются при прекращении права собственности на недвижимое имущество в связи с решением государственного органа об изъятии горных отводов, участков акватории и других участков, на которых находится имущество.
Сноска. Статья 255 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 256. Изъятие бесхозяйственно содержащихся памятников истории и культуры, культурных ценностей
Сноска. Заголовок статьи 256 в редакции Закона РК от 01.03.2011 № 414-IV ( вводится в действие со дня его первого официального опубликования).
В случаях, когда собственник памятников истории и культуры, культурных ценностей, отнесенных в соответствии с законодательством Республики Казахстан к особо ценным и охраняемым государством, бесхозяйственно содержит эти памятники и ценности, что грозит утратой ими своего значения, такие памятники и ценности по решению суда изымаются у собственника государством путем выкупа или продаются с публичных торгов.
При выкупе памятников истории и культуры, культурных ценностей собственнику возмещается их стоимость в размере, установленном соглашением сторон, а в случае спора - судом. При продаже с публичных торгов собственнику передается вырученная от продажи сумма за вычетом расходов на проведение торгов.
Сноска. Статья 256 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 257. Оценка имущества при прекращении права собственности
При прекращении права собственности имущество оценивается исходя из его рыночной цены, если иное не установлено законами Республики Казахстан.
Сноска. Статья 257 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 258. Прекращение вещных прав, принадлежащих несобственнику
Вещные права, принадлежащие несобственнику, прекращаются по правилам, установленным статьями 249-257 настоящего Кодекса, а также по решению собственника в порядке, установленном законодательными актами, уставом юридического лица или договором собственника с владельцем имущества.
Глава 15. Защита права собственности и иных вещных прав
Статья 259. Признание права собственности
Собственник вправе требовать признания права собственности.
Статья 260. Истребование имущества собственником из чужого незаконного владения
Собственник вправе истребовать свое имущество из чужого незаконного владения.
Статья 261. Истребование имущества у добросовестного приобретателя
1. Если имущество возмездно приобретено у лица, которое не имело права его отчуждать, о чем приобретатель не знал и не должен был знать ( добросовестный приобретатель), то собственник вправе истребовать это имущество от приобретателя лишь в случае, когда имущество утеряно собственником или лицом, которому имущество было передано собственником во владение, либо похищено у того или другого, либо выбыло из их владения иным путем помимо их воли.
2. Если имущество приобретено безвозмездно от лица, которое не имело права его отчуждать, собственник вправе истребовать имущество во всех случаях .
3. Истребование имущества по основаниям, указанным в пункте 1 настоящей статьи, не допускается, если имущество было продано в порядке, установленном для исполнения судебных решений.
Сноска. В статью 261 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 262. Ограничение истребования денег и ценных бумаг
Деньги, а также ценные бумаги на предъявителя не могут быть истребованы от добросовестного приобретателя.
Статья 263. Расчеты при возврате вещей из незаконного владения
1. Истребуя имущество на основании статей 260, 261 настоящего Кодекса, собственник вправе также требовать от недобросовестного владельца возвращения или возмещения всех доходов, которые он извлек или должен был извлечь за все время владения; от добросовестного же владельца - всех доходов, которые он извлек или должен был извлечь со времени, когда узнал или должен был узнать о неправомерности владения или получил повестку по иску собственника о возврате имущества. Добросовестный владелец, в свою очередь, вправе требовать от собственника возмещения произведенных им необходимых затрат на имущество с того времени, с какого собственнику причитаются доходы от имущества. Недобросовестный владелец вправе получить такое возмещение полностью или частично лишь в случаях, когда требование владельца признано судом основательным.
2. Незаконный владелец вправе оставить за собой произведенные им улучшения, если они могут быть отделены без повреждения вещи. Если такое отделение улучшений невозможно, добросовестный владелец имеет право требовать возмещения произведенных затрат на улучшение, но не свыше размера увеличения стоимости вещи. Недобросовестный владелец такого права не имеет.
Статья 264. Защита прав собственника от нарушений, не соединенных с лишением владения
Собственник вправе требовать устранения всяких нарушений его права, хотя бы эти нарушения и не были соединены с лишением владения.
Статья 265. Защита вещных прав лица, не являющегося собственником
Права, предусмотренные статьями 259-264 настоящего Кодекса, принадлежат также лицу, хотя и не являющемуся собственником, но владеющему имуществом на праве хозяйственного ведения, оперативного управления, постоянного землепользования либо по иному основанию, предусмотренному
законодательными актами или договором. Это лицо имеет право на защиту его владения также против собственника.
Статья 266. Защита интересов собственника при прекращении его прав по основаниям, предусмотренным законом
В случае принятия Республикой Казахстан законодательных актов, прекращающих право собственности, убытки, причиненные собственнику в результате принятия этих актов, возмещаются собственнику в полном объеме Республикой Казахстан.
Статья 267. Недействительность актов государственных органов и должностных лиц, нарушающих права собственника и другие вещные права
Сноска. Заголовок статьи 267 с изменением, внесенным Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
1. Если в результате издания не соответствующего законодательству нормативного или индивидуального акта государственного органа либо должностного лица нарушаются права собственника и других лиц по владению, пользованию и распоряжению принадлежащим им имуществом, такой акт признается в судебном порядке недействительным по иску собственника или лица, права которого нарушены.
2. При вынесении судом решения по конкретному делу, акты государственных органов, противоречащие законодательным актам, не применяются.
Убытки, причиненные собственнику в результате издания указанных актов, подлежат возмещению в полном объеме соответствующим государственным органом из средств соответствующего бюджета в соответствии с правилами пункта 1 статьи 922 настоящего Кодекса.
Сноска. Статья 267 с изменениями, внесенными законами РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 17.07.2015 № 333-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
РАЗДЕЛ 3. ОБЯЗАТЕЛЬСТВЕННОЕ ПРАВО
Подраздел 1. Общие положения об обязательстве
Глава 16. Понятие и основания возникновения обязательства
Статья 268. Обязательство
В силу обязательства одно лицо (должник) обязано совершить в пользу другого лица (кредитора) определенное действие, как-то: передать имущество, выполнить работу, уплатить деньги и так далее либо воздержаться от определенного действия, а кредитор имеет право требовать от должника исполнения его обязанности. Кредитор обязан принять от должника исполнение.
К обязательствам применяются положения настоящего подраздела, если иное не предусмотрено Особенной частью настоящего Кодекса.
Сноска. Статья 268 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 269. Стороны обязательства
1. (Исключен) 2. В обязательстве в качестве каждой из его сторон - кредитора или должника
- могут участвовать одновременно несколько лиц. В этих случаях возникает долевое, солидарное или субсидиарное обязательство в соответствии с правилами, установленными настоящим Кодексом (ст.286 288- настоящего Кодекса).
Недействительность требований кредитора к одному из лиц, участвующих в обязательстве на стороне должника, равно как истечение срока исковой давности по требованию к такому лицу, сами по себе не затрагивают требований кредитора к остальным таким лицам.
3. Если в силу обязательства каждая из сторон несет обязанность в пользу другой стороны, она считается должником другой стороны в том, что обязана сделать в ее пользу, и одновременно ее кредитором в том, что имеет право от нее требовать.
Сноска. В статью 269 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 270. Участники обязательства
1. Участниками обязательства являются стороны (должник и кредитор) и третьи лица.
2. В качестве третьих лиц выступают лица, связанные обязательствами или иными правоотношениями с одной из сторон обязательства.
3. Обязательство не создает обязанностей для третьих лиц. В случаях, предусмотренных законодательством или соглашением сторон, обязательство может порождать для третьих лиц права в отношении одной или обеих сторон обязательства.
Статья 271. Основания возникновения обязательства
Обязательства возникают из договора, причинения вреда или иных оснований , указанных в статье 7 настоящего Кодекса.
Глава 17. Исполнение обязательства
Статья 272. Надлежащее исполнение обязательства
Обязательство должно исполняться надлежащим образом в соответствии с условиями обязательства и требованиями законодательства, а при отсутствии таких условий и требований - в соответствии с обычаями делового оборота или иными обычно предъявляемыми требованиями.
Статья 273. Недопустимость одностороннего отказа от исполнения обязательства
Односторонний отказ от исполнения обязательства и одностороннее изменение его условий не допускаются, за исключением случаев, предусмотренных законодательством или договором.
Статья 274. Исполнение обязательства по частям
Кредитор вправе не принимать исполнения обязательства по частям, если иное не предусмотрено условиями обязательства, законодательством или не вытекает из обычаев делового оборота или существа обязательства.
Статья 275. Исполнение обязательства надлежащему лицу
Если иное не предусмотрено соглашением сторон и не вытекает из обычаев делового оборота или существа обязательства, должник вправе при исполнении обязательства потребовать доказательств того, что исполнение принимается самим кредитором или управомоченным им на это лицом, и несет риск последствий непредъявления такого требования.
Статья 276. Исполнение обязательства третьим лицом
1. Исполнение обязательства может быть возложено в целом или в части на третье лицо, если это предусмотрено законодательством или договором, а равно если третье лицо связано с одной из сторон соответствующим договором.
2. Если из законодательства, условий обязательства или его существа не вытекает обязанность должника исполнить обязательство лично, кредитор обязан принять исполнение, предложенное за должника третьим лицом.
3. Третье лицо, подвергающееся опасности утратить свое право на имущество должника (право пользования, владения, залога и другие) вследствие обращения кредитором взыскания на это имущество, может за свой счет удовлетворить требование кредитора без согласия должника. В этом случае к третьему лицу переходят права кредитора по обязательству и применяются правила настоящего Кодекса об уступке требования ( -статьи 339 347 настоящего Кодекса).
Статья 277. Срок исполнения обязательства
1. Если обязательство предусматривает или позволяет определить день его исполнения или период времени, в течение которого оно должно быть исполнено , обязательство подлежит исполнению в этот день или, соответственно, в любой момент в пределах такого периода.
2. В случаях, когда обязательство не предусматривает срок его исполнения и не содержит условий, позволяющих определить этот срок, оно должно быть исполнено в разумный срок после возникновения обязательства.
Обязательство, не исполненное в разумный срок, а равно обязательство, срок исполнения которого определен моментом востребования, должник обязан исполнить в семидневный срок со дня предъявления кредитором требования о его исполнении, если обязанность исполнения в другой срок не вытекает из законодательства, условий обязательства, обычаев делового оборота или существа обязательства.
Статья 278. Требования к равномерности исполнения обязательства
Обязательства, рассчитанные на длительные сроки исполнения, должны исполняться равномерно, в разумные для данного вида обязательства периоды ( день, декада, месяц, квартал и т.п.), если иное не предусмотрено законодательством или условиями обязательства либо не вытекает из существа обязательства или обычаев делового оборота.
Статья 279. Досрочное исполнение обязательства
1. Должник вправе исполнить обязательство до срока, если иное не предусмотрено законодательством или условиями обязательства и не вытекает из его существа.
2. Досрочное исполнение обязательств, связанных с предпринимательской деятельностью, допускается только в случаях, когда возможность исполнить обязательство до срока предусмотрена законодательством или условиями обязательства либо вытекает из обычаев делового оборота или существа обязательства.
Статья 280. Информация о ходе исполнения обязательства
Законодательством или условиями обязательства может быть предусмотрена обязанность должника сообщать кредитору о ходе исполнения обязательства.
Статья 281. Место исполнения обязательства
Если место исполнения не определено законодательством или условиями обязательства или не явствует из существа обязательства или обычаев делового оборота, исполнение должно быть произведено:
1) по обязательству передать недвижимое имущество - в месте нахождения имущества;
2) по обязательству передать товар или иное имущество с использованием перевозки - в месте сдачи имущества первому перевозчику для доставки его кредитору;
3) по другим обязательствам предпринимателя передать товар или иное имущество - в месте изготовления или хранения имущества, если это место было известно кредитору в момент возникновения обязательства;
4) по денежному обязательству - в месте жительства кредитора в момент возникновения обязательства, а если кредитором является юридическое лицо - в месте его нахождения в момент возникновения обязательства; если кредитор к моменту исполнения обязательства изменил место жительства или место нахождения и известил об этом должника - на новом месте жительства или нахождения кредитора, с отнесением на его счет всех расходов, связанных с переменой места исполнения;
5) по всем другим обязательствам - в месте жительства должника, а если должником является юридическое лицо - в месте его нахождения.
Сноска. В статью 281 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 282. Денежное обязательство
1. В силу денежного обязательства одно лицо (должник) обязано уплатить деньги другому лицу (кредитору), а кредитор имеет право требовать от должника исполнение его обязанности по уплате денег (заем денег и другие обязательства). К обязанностям по уплате денег по возмездному договору, обязательствам о возмещении убытков и уплате неустойки, а также обязательствам, возникающим вследствие причинения вреда либо неосновательного обогащения, применяются правила о денежном обязательстве, если иное не установлено настоящим Кодексом, законодательными актами Республики Казахстан или не вытекает из существа обязательства.
Денежные обязательства на территории Республики Казахстан должны быть выражены в тенге (статья 127 настоящего Кодекса), за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
Использование иностранной валюты, а также платежных документов в иностранной валюте при осуществлении расчетов по обязательствам на территории Республики Казахстан допускается в случаях и на условиях, определенных законодательными актами Республики Казахстан или в установленном ими порядке.
Порядок и способы осуществления платежей и переводов устанавливаются законодательством Республики Казахстан о платежах и платежных системах и определяются сторонами в соответствующем договоре.
2. Сумма произведенного платежа, недостаточная для исполнения денежного обязательства, при отсутствии иного соглашения сторон погашает прежде всего задолженность по основному долгу и вознаграждению (интерес), основной долг и вознаграждение (интерес) за текущий период, а в оставшейся части – неустойку и издержки кредитора по получению исполнения.
Особенности погашения платежей по договорам банковского займа или о предоставлении микрокредита устанавливаются банковским законодательством Республики Казахстан либо законодательством Республики Казахстан о микрофинансовых организациях.
3. В долгосрочных обязательствах может быть предусмотрена индексация платежа на условиях, оговоренных сторонами, если иное не предусмотрено законодательными актами Республики Казахстан.
Сноска. Статья 282 с изменениями, внесенными законами РК от 11 июля 1997 г. N 154; от 16 июля 1999 г. N 436; от 24 декабря 2001 г. N 276 (вводится в действие с 1 января 2002 г.); Законом Республики Казахстан от 10 июля 2003 года N 483 (вводится в действие с 1 января 2004 года); от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования); от 10.02.2011
№ 406-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.11.2015 № 422-V (порядок введения в действие см. ст. 2); от 26.07.2016 № 12-VІ (вводится в действие по истечении тридцати календарных дней после дня его первого официального опубликования).
Статья 283. Увеличение сумм, выплачиваемых на содержание гражданина
Сумма, выплачиваемая по денежному обязательству непосредственно на содержание гражданина (возмещение вреда, причиненного жизни или здоровью, по договору пожизненного содержания и другие), ежегодно увеличивается пропорционально среднему значению прогнозируемого уровня инфляции.
Сноска. Статья 283 в редакции Закона РК от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 284. Исполнение взаимных обязанностей
1. Взаимные обязанности должны исполняться сторонами одновременно, если из законодательства Республики Казахстан, договора, обычаев делового оборота, условий обязательства или его существа не вытекает иное.
2. В случае неисполнения или ненадлежащего исполнения обязательства одной из сторон, вторая сторона вправе приостановить исполнение своего обязательства либо отказаться от исполнения этого обязательства и потребовать возмещения убытков.
Сноска. Статья 284 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 285. Исполнение альтернативного обязательства
Должнику, обязанному совершить одно из двух или нескольких действий, принадлежит право выбора, если из законодательства или условий обязательства не вытекает иное.
Статья 286. Исполнение обязательства, в котором участвуют несколько кредиторов или несколько должников
Если в обязательстве участвуют несколько кредиторов или несколько должников (обязательство со множественностью лиц), то каждый из кредиторов
имеет право требовать исполнения, а каждый из должников обязан исполнить обязательство в равной доле с другими, поскольку из законодательства или условий обязательства не вытекает иное (долевое обязательство).
Статья 287. Исполнение солидарного обязательства
1. Обязательство со множественностью лиц, в силу которого каждый кредитор вправе требовать, а каждый должник обязан исполнять обязательство полностью, признается солидарным обязательством.
Солидарная обязанность или солидарное требование возникают, если это предусмотрено договором или установлено законодательными актами, в частности, при неделимости предмета обязательства.
2. Обязанности нескольких должников по обязательству, связанному с предпринимательской деятельностью, равно как и требования нескольких кредиторов в таком обязательстве, являются солидарными, если законодательством или условиями обязательства не предусмотрено иное.
3. При солидарной обязанности должников кредитор вправе требовать исполнения как от всех должников, так и от любого из них в отдельности, причем как полностью, так и в части долга. Кредитор, не получивший полного удовлетворения от одного из солидарных должников, имеет право требовать недополученное от остальных солидарных должников.
Солидарные должники остаются обязанными до тех пор, пока обязательство не исполнено полностью.
Исполнение солидарной обязанности полностью одним из должников освобождает остальных должников от исполнения кредитору.
4. При солидарности требований любой из солидарных кредиторов вправе предъявить к должнику требование в полном объеме.
Исполнение обязательства полностью одному из солидарных кредиторов освобождает должника от исполнения остальным кредиторам.
5. В случае солидарной обязанности должник не вправе выдвигать против требования кредитора возражения, основанные на таких отношениях других должников к кредитору, в которых данный должник не участвует.
В случае солидарности требований должник не вправе выдвигать против требования одного из солидарных кредиторов возражения, основанные на таких отношениях должника с другим солидарным кредитором, в которых данный кредитор не участвует.
Сноска. В статью 287 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 288. Исполнение субсидиарного обязательства
Законодательными актами или условиями обязательства между кредитором и должниками может быть предусмотрено, что при неудовлетворении основным должником требования кредитора об исполнении обязательства это требование может быть заявлено в неисполненной части другому должнику (субсидиарному должнику).
Статья 289. Регрессные требования
1. Должник, исполнивший обязательство другого лица, имеет право обратного требования (регресса) к этому лицу в размере исполненного обязательства.
Должник, не исполнивший обязательство вследствие действий третьего лица, имеет право требовать возмещения убытков с данного лица.
2. Должник, исполнивший солидарное обязательство, имеет право обратного требования к каждому из остальных должников в равной доле, за вычетом доли, падающей на него самого.
Неуплаченное одним из содолжников должнику, исполнившему солидарную обязанность, падает в равной доле на этого должника и на остальных содолжников.
Правила настоящего пункта применяются соответственно при прекращении солидарного обязательства зачетом встречного требования одного из должников.
3. Солидарный кредитор, получивший исполнение от должника, обязан возместить другим кредиторам причитающиеся им доли, если иное не вытекает из отношений между ними.
Статья 290. Удостоверение исполнения обязательства
1. Кредитор, принимая исполнение, обязан по требованию должника выдать ему расписку в получении исполнения полностью или в части.
Если должник выдал кредитору в удостоверение обязательства долговой документ, то кредитор, принимая исполнение, должен вернуть документ должнику. При невозможности возвращения он обязан указать на это в выдаваемой им расписке.
Расписка может быть заменена надписью на долговом документе, возвращенном должнику.
2. Нахождение долгового документа у должника удостоверяет, пока не доказано иное, прекращение обязательства.
3. При отказе кредитора выдать расписку о произведенном исполнении, вернуть долговой документ или отметить невозможность его возвращения в расписке должник вправе задержать исполнение. В этом случае кредитор считается просрочившим.
Статья 291. Исполнение обязательства внесением долга
Сноска. Заголовок статьи 291 в редакции Закона РК от 02.07.2018 № 166-VI ( вводится в действие с 01.07.2019).
1. Должник во исполнение обязательств вправе разместить причитающиеся с него деньги на условиях депозита, а ценные бумаги - на условиях хранения на имя нотариуса, а в случаях, установленных законодательными актами, - на имя суда, если обязательство не может быть исполнено должником вследствие:
1) отсутствия кредитора или лица, уполномоченного им принять исполнение, в месте, где обязательство должно быть исполнено;
2) недееспособности кредитора и отсутствия у него представителя; 3) очевидного отсутствия определенности по поводу того, кто является
кредитором по обязательству, в частности, в связи со спором по этому поводу между кредитором и другими лицами;
4) уклонения кредитора от принятия исполнения или иной просрочки с его стороны.
Должник во исполнение обязательств также вправе разместить причитающиеся с него деньги на условиях депозита на имя нотариуса в случае, если нотариально удостоверенным договором между должником и кредитором предусмотрено размещение денег на депозит нотариуса как способ исполнения обязательства.
2. Внесение денег или ценных бумаг на условиях депозита или хранения на имя нотариуса или суда считается исполнением обязательства.
Нотариус или суд, на имя которых внесены деньги или ценные бумаги, извещают об этом кредиторов.
Условия размещения должником денег и ценных бумаг на имя нотариуса, выдачи их кредитору, а также другие условия депозита и хранения устанавливаются законодательством Республики Казахстан о нотариате.
3. Особенности исполнения отдельных обязательств на рынке ценных бумаг, которые не могут быть исполнены вследствие оснований, указанных в пункте 1 настоящей статьи, устанавливаются законами Республики Казахстан.
Сноска. Статья 291 с изменениями, внесенными законами РК от 11.07.1997 № 154; от 02.03.1998 № 211; от 02.07.2018 № 166-VI (вводится в действие с
01.07.2019); от 21.01.2019 № 217-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Глава 18. Обеспечение исполнения обязательства Параграф 1. Общие положения
Статья 292. Способы обеспечения исполнения обязательства
1. Исполнение обязательства может обеспечиваться неустойкой, залогом, удержанием имущества должника, поручительством, гарантией, задатком, гарантийным взносом и другими способами, предусмотренными законодательством или договором.
Способы обеспечения исполнения обязательств по ценным бумагам устанавливаются законодательными актами Республики Казахстан, регулирующими деятельность на рынке ценных бумаг.
2. Недействительность соглашения об обеспечении обязательства не влечет недействительность этого обязательства (основного обязательства).
3. Недействительность основного обязательства влечет недействительность обеспечивающего его обязательства.
4. Прекращение основного обязательства влечет прекращение обеспечивающего его обязательства, если иное не предусмотрено законодательными актами Республики Казахстан.
Сноска. Статья 292 с изменениями, внесенными законами РК от 08.07.2005 N 72 (порядок введения в действие см. ст. 2); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.11.2015 № 422-V (вводится в действие с 01.01.2016).
Параграф 2. Неустойка
Статья 293. Понятие неустойки
Неустойкой (штрафом, пеней) признается определенная законодательством или договором денежная сумма, которую должник обязан уплатить кредитору в случае неисполнения или ненадлежащего исполнения обязательства, в частности в случае просрочки исполнения. По требованию об уплате неустойки кредитор не обязан доказывать причинение ему убытков.
Сноска. В статью 293 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 294. Форма соглашения о неустойке
Соглашение о неустойке должно быть совершено в письменной форме, независимо от формы основного обязательства.
Несоблюдение письменной формы влечет ничтожность соглашения о неустойке.
Сноска. Статья 294 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 295. Законная неустойка
1. Кредитор вправе требовать уплаты неустойки, определенной законодательством (законной неустойки), независимо от того, предусмотрена ли обязанность ее уплаты соглашением сторон.
2. Размер законной неустойки может быть увеличен соглашением сторон, если законодательством это не запрещено.
Статья 296. Размеры неустойки
Размеры неустойки определяются в твердой денежной сумме или в процентах к сумме неисполненного либо ненадлежаще исполненного обязательства.
Статья 297. Уменьшение размера неустойки
Если подлежащая уплате неустойка (штраф, пеня) чрезмерно велика по сравнению с убытками кредитора, суд по требованию должника вправе уменьшить неустойку (штраф, пеню), учитывая степень выполнения обязательства должником и заслуживающие внимания интересы должника и кредитора.
Сноска. Статья 297 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 298. Основания взыскания неустойки
Неустойка взыскивается за неисполнение или ненадлежащее исполнение обязательства при наличии условий привлечения должника к ответственности за нарушение обязательства (ст.359 настоящего Кодекса).
Параграф 3. Залог
Статья 299. Понятие залога
1. Залогом признается такой способ обеспечения исполнения обязательства, в силу которого кредитор (залогодержатель) имеет право, в случае неисполнения должником обеспеченного залогом обязательства, получить удовлетворение из стоимости заложенного имущества преимущественно перед другими кредиторами лица, которому принадлежит это имущество (залогодатель), за изъятиями, установленными настоящим Кодексом.
Залогодержатель имеет право получить на тех же началах удовлетворение из страхового возмещения за утрату или повреждение заложенного имущества, независимо от того, в чью пользу оно застраховано, если только утрата или повреждение не произошли по причинам, за которые залогодержатель отвечает.
2. Залог предприятий, зданий, сооружений, квартир, прав на земельные участки и другого недвижимого имущества (ипотека) регулируется Законом Республики Казахстан об ипотеке недвижимости. Общие правила о залоге, содержащиеся в настоящем Кодексе, применяются к ипотеке в случаях, когда Законом Республики Казахстан об ипотеке не установлены иные правила.
3. Залог подлежащих государственной регистрации воздушных и морских судов, судов внутреннего водного плавания, судов плавания "река-море" ( ипотека судна) регулируется специальными законодательными актами Республики Казахстан. Общие правила о залоге, содержащиеся в настоящем Кодексе, применяются к ипотеке судна в случаях, когда специальными законодательными актами Республики Казахстан не установлены иные правила.
Требования части первой настоящего пункта распространяются также и на строящиеся морские суда, суда внутреннего водного плавания, суда плавания " река-море".
Сноска. Статья 299 с изменениями, внесенными законами РК от 02.03.1998 № 211; от 17.01.2002 № 285.
Статья 300. Основания возникновения залога
1. Залог возникает в силу договора. Залог возникает также на основании законодательных актов при наступлении указанных в них обстоятельств, если в законодательных актах предусмотрено, какое имущество и для обеспечения исполнения какого обязательства признается находящимся в залоге.
2. Правила настоящего Кодекса о залоге, возникающем в силу договора, соответственно применяются к залогу, возникающему на основании законодательных актов, если законодательными актами не установлено иное.
Статья 301. Предмет залога
1. Предметом залога может быть любое имущество, в том числе вещи и имущественные права (требования), за исключением вещей, изъятых из оборота ( пункт 2 статьи 116 настоящего Кодекса), требований, неразрывно связанных с личностью кредитора, в частности требований об алиментах, возмещении вреда, причиненного жизни или здоровью, и иных прав, уступка которых другому лицу запрещена законодательными актами.
2. Право залога может быть договором распространено на имущество, которое поступит в собственность или хозяйственное ведение залогодателя в будущем.
3. Залог отдельных видов имущества, в частности имущества граждан, на которое не допускается обращение взыскания, может быть законодательными актами запрещен или ограничен.
4. (исключен - от 12 января 2007 года № 225) 5. (исключен) Сноска. В статью 301 внесены изменения Законами РК от 11 июля 1997 г. №
154; от 2 марта 1998 г. № 211; от 8 июля 2005 г. № 72 (порядок введения в действие см. ст.2); от 12 января 2007 года № 225 (вводится в действие со дня его официального опубликования).
Статья 302. Требования, обеспечиваемые залогом
1. Если иное не предусмотрено договором или законодательными актами, залог обеспечивает требование в том его объеме, какой оно имеет к моменту фактического удовлетворения, включая вознаграждение (интерес), возмещение убытков, причиненных просрочкой исполнения, неустойку (штраф, пеню), необходимые издержки по содержанию заложенного имущества, а также возмещение расходов по взысканию.
2. Залог может устанавливаться в отношении требований, которые возникнут в будущем при условии, если стороны договорятся о размере обеспечения залогом таких требований.
Сноска. В статью 302 внесены изменения - Законом РК от 11 июля 1997 г. N 154.
Статья 303. Виды залога
1. Ипотека - вид залога, при котором заложенное имущество остается во владении и пользовании залогодателя или третьего лица.
Предметом ипотеки могут быть предприятия, строения, здания, сооружения, квартиры в многоквартирном доме, транспортные средства, космические
объекты, товары в обороте и другое, не изъятое из гражданского оборота, имущество.
Отделимые плоды могут быть предметом ипотеки только при условии, если они не становятся с момента отделения объектом прав третьего лица. Ипотека предприятий, строений, зданий, сооружений, квартир в многоквартирном доме, транспортных средств и космических объектов подлежит регистрации в органах, осуществляющих регистрацию таких объектов.
2. Заклад - вид залога, при котором заложенное имущество передается залогодателем во владение залогодержателя.
С согласия залогодержателя предмет залога может быть оставлен у залогодателя под замком залогодержателя. Предмет залога может быть оставлен во владении залогодателя с нанесением знаков, свидетельствующих о залоге ( твердый залог).
3. При залоге прав предметом залога являются имущественные права, которые могут быть отчуждены, в частности, арендные права на предприятия, строения, здания, сооружения, право на долю в имуществе хозяйственного товарищества, долговые требования, авторские, изобретательские и иные имущественные права.
Залог прав на земельный участок, а также прав на иные природные ресурсы допускается в пределах и на условиях, установленных земельным и иным природноресурсовым законодательством.
Срочное право может быть предметом залога только до истечения срока его действия.
Должник заложенного права должен быть уведомлен о залоге. Если закладываемое право подтверждается документом, договор залога
может быть оформлен передачей правоустанавливающего документа. 3-1. При залоге банковского вклада в залог предоставляются права вкладчика
по договору банковского вклада. Залогодатель-вкладчик обязан письменно известить банк о залоге банковского вклада с указанием сведений о залогодержателе.
4. Залог ценных бумаг осуществляется в соответствии с законодательством о рынке ценных бумаг.
5. Если иное не установлено договором о залоге, деньги, являющиеся предметом залога, размещаются в банке.
Вознаграждение (интерес), причитающееся за данные деньги, принадлежат залогодателю, если иное не предусмотрено договором.
Деньги могут быть переданы залогодержателю или иному лицу при соблюдении условий, ограничивающих возможность пользования заложенными деньгами этим лицом (передачи на хранение в банковский сейф, ячейку сейфа,
отдельное помещение для хранения). Неисполнение таким лицом ограничений по использованию заложенных денег является основанием его ответственности за неосновательное обогащение с момента передачи ему денег.
Сноска. Статья 303 с изменениями, внесенными законами РК от 11.07.1997 N 154; от 08.07.2005 N 72 (порядок введения в действие см. ст. 2); от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 24.05.2018 № 156-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 304. Залог имущества, находящегося в общей собственности
Имущество, составляющее общую собственность, может быть передано в залог только с согласия всех собственников. Право на долю в общем имуществе может быть самостоятельным предметом залога.
Статья 305. Залогодатель
1. Залогодателем может быть как сам должник, так и третье лицо. 2. Залогодателем вещи может быть ее собственник либо с согласия
собственника лицо, имеющее на нее право хозяйственного ведения, если иное не предусмотрено законодательными актами .
3. Залогодателем права может быть лицо, которому принадлежит закладываемое право.
Залог права аренды или иного права на чужую вещь не допускается без согласия ее собственника или лица, имеющего на нее право хозяйственного ведения, если законодательными актами или договором запрещено отчуждение этого права без согласия указанных лиц.
Статья 306. Страхование заложенного имущества
1. Договором или законодательными актами на залогодержателя может быть возложена обязанность страховать переданное в его владение заложенное имущество.
Страхование заложенного имущества, которое остается в пользовании залогодателя, возлагается на последнего.
2. При наступлении страхового случая право требования по договору страхования заложенного имущества у залогодателя возникает только в случае отказа от него залогодержателя.
Если сумма страховой выплаты превышает сумму обязательства, обеспеченного залогом, залогодержатель обязан в течение трех банковских дней с момента ее получения перечислить разницу залогодателю.
Сноска. В статью 306 внесены изменения - Законом РК от 18 декабря 2000 г. N 128.
Статья 307. Содержание и форма договора о залоге
1. В договоре о залоге должны быть указаны предмет залога, существо, размер или максимальная сумма и срок исполнения обязательства, обеспечиваемого залогом. В случае, если предметом залога выступает недвижимое имущество, в договоре о залоге должна быть указана его оценка.
Движимое имущество и (или) отдельные категории движимого имущества ( включая машинное оборудование и запасы материальных оборотных средств), являющиеся предметом залога, могут иметь общее описание предмета залога без требования конкретного описания залогового обеспечения и без оценки предмета залога.
В договоре о залоге должно также содержаться указание на то, у какой из сторон находится во владении заложенное имущество, и допустимость его использования.
Оценка предмета залога выражается в тенге и может определяться соглашением сторон, если иное не установлено законами Республики Казахстан. Оценка предмета залога, обеспечивающего обязательство в иностранной валюте, выражается в тенге и валюте обязательства по рыночному курсу обмена валюты на дату заключения договора о залоге.
2. Договор о залоге должен быть заключен в письменной форме. 3. Несоблюдение правил, содержащихся в пунктах 1 и 2 настоящей статьи,
влечет ничтожность договора о залоге. Сноска. Статья 307 в редакции Закона РК от 10.02.2011 № 406-IV (вводится в
действие по истечении десяти календарных дней после его первого официального опубликования); с изменениями, внесенными законами РК от 29.12.2014 № 269-V (вводится в действие с 01.01.2015); от 22.04.2015 № 308-V ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 24.05.2018 № 156-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 308. Регистрация залога
1. Залог имущества, подлежащего регистрации, должен быть зарегистрирован в органе, осуществляющем регистрацию данного имущества, если иное не вытекает из настоящего Кодекса.
Залог недвижимого имущества подлежит государственной регистрации органом, осуществляющим регистрацию прав на недвижимое имущество.
2. Регистрации подлежат изменение предмета залога, а также другие изменения в случаях, установленных законодательными актами Республики Казахстан.
Не подлежащие обязательной регистрации изменения залога могут быть зарегистрированы по желанию участников.
3. Запись о прекращении залога вносится в реестр при: 1) регистрации прекращения залога на основании заявления залогодержателя
в связи с исполнением основного обязательства; 2) обращении взыскания на предмет залога в порядке, предусмотренном
законодательными актами Республики Казахстан; 3) регистрации прекращения залога в связи с расторжением договора залога; 4) прекращении залога по иным основаниям, предусмотренным статьей 322
настоящего Кодекса. 4. Залогодатель, исполнивший обязательство, обеспеченное залогом, вправе
требовать аннулирования в реестре записи о залоге. По требованию залогодателя залогодержатель обязан представить органу, ведущему регистрацию, необходимые документы и письменные заявления. При неисполнении или несвоевременном исполнении залогодержателем этих обязанностей залогодатель вправе требовать возмещения причиненных ему убытков.
Сноска. Статья 308 в редакции Закона РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); с изменением, внесенным Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 309. Имущество, на которое распространяются права залогодержателя
1. Права залогодержателя (право залога) на вещь, являющуюся предметом залога, распространяются на ее принадлежности и на неотделимые плоды, если иное не предусмотрено договором или законодательными актами.
В случаях, предусмотренных договором или законодательными актами, право залога может распространяться на полученные в результате использования заложенного имущества отделимые плоды, продукцию и доходы, а также приобретенные в последующем активы и замененные активы.
В случае, если предметом залога выступает движимое имущество, право залога распространяется на отделимые плоды, продукцию и доходы (в том числе приобретенные в последующем активы и замененные активы), полученные в результате его использования, если иное не предусмотрено договором.
При этом право залога распространяется на отделимые плоды, продукцию и доходы (в том числе приобретенные в последующем активы и замененные активы) только в том объеме требования, который оно не обеспечивает заложенным движимым имуществом к моменту его фактического удовлетворения.
2. При ипотеке предприятия или иного имущественного комплекса в целом право залога распространяется на все его имущество, движимое и недвижимое, включая права требования и исключительные права, в том числе приобретенные в период ипотеки, если иное не предусмотрено законодательными актами или договором.
3. Ипотека здания или сооружения допускается только с одновременной ипотекой по тому же договору права на земельный участок, на котором находится это здание или сооружение, либо на часть этого участка, функционально обеспечивающего закладываемый объект.
Сноска. Статья 309 с изменениями, внесенными законами РК от 29.12.2014 № 269-V (вводится в действие с 01.01.2015); от 24.05.2018 № 156-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 310. Возникновение права залога
1. Поскольку иное не предусмотрено договором о залоге, право залога возникает в отношении имущества, залог которого подлежит регистрации - с момента регистрации договора, в отношении другого имущества - с момента передачи этого имущества залогодержателю, а если оно не подлежит передаче, то с момента заключения договора о залоге.
2. Право залога на товары в обороте возникает в соответствии с правилами пункта 2 статьи 327 настоящего Кодекса.
Статья 311. Последующий залог (перезалог)
1. Если имущество, находящееся в залоге, становится предметом еще одного залога в обеспечение других требований (перезалог), требования последующего залогодержателя удовлетворяются из стоимости предмета залога после удовлетворения требований предшествующих залогодержателей.
2. Перезалог допускается, если он не запрещен предшествующими договорами о залоге.
3. Залогодатель обязан сообщить каждому последующему залогодержателю сведения обо всех существующих залогах данного имущества и отвечает за убытки, причиненные залогодержателям невыполнением этой обязанности.
Сноска. В статью 311 внесены изменения - Законами РК от 2 марта 1998 г. N 211; от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 312. Содержание и сохранность заложенного имущества
1. Залогодатель или залогодержатель, в зависимости от того, у кого из них находится заложенное имущество, обязаны, если иное не предусмотрено законодательными актами или договором:
1) принимать меры, необходимые для обеспечения сохранности заложенного имущества, в том числе для защиты его от посягательств и требований со стороны третьих лиц;
2) немедленно уведомлять другую сторону о возникновении угрозы утраты или повреждения заложенного имущества.
2. Залогодержатель и залогодатель вправе проверять по документам и фактически наличие, размер, состояние и условия хранения заложенного имущества, находящегося у другой стороны.
3. При грубом нарушении залогодержателем обязанностей, указанных в пункте 1 настоящей статьи, создающем угрозу утраты или повреждения заложенного имущества, залогодатель вправе потребовать досрочного прекращения залога.
Статья 313. Последствия утраты или повреждения заложенного имущества
1. Залогодатель несет риск случайной гибели или повреждения заложенного имущества, если иное не предусмотрено договором о залоге.
2. Залогодержатель отвечает за полную или частичную утрату или повреждение переданного ему предмета залога, если не докажет, что может быть
освобожден от ответственности в соответствии со статьей 359 настоящего Кодекса.
3. Залогодержатель отвечает за утрату предмета залога в размере его действительной стоимости, а за его повреждение - в размере суммы, на которую эта стоимость понизилась, независимо от суммы, в которую был оценен предмет залога при передаче его залогодержателю.
4. Если в результате повреждения предмета залога он изменился настолько, что не может быть использован по прямому назначению, залогодатель вправе от него отказаться и потребовать возмещение за его утрату.
5. Договором может быть предусмотрена обязанность залогодержателя возместить залогодателю и иные убытки, причиненные утратой или повреждением предмета залога.
6. Залогодатель, являющийся должником по обеспеченному залогом обязательству, вправе зачесть требование к залогодержателю о возмещении убытков, причиненных утратой или повреждением предмета залога, в погашение обязательства, обеспеченного залогом.
Статья 314. Замена и восстановление предмета залога
1. Замена предмета залога допускается с согласия залогодержателя, если законодательными актами или договором не предусмотрено иное.
2. Если предмет залога погиб или поврежден либо право собственности или хозяйственного ведения на него прекращено по основаниям, установленным законодательными актами, залогодатель вправе в разумный срок восстановить предмет залога или заменить его другим равноценным имуществом.
Статья 315. Пользование и распоряжение предметом залога
1. Залогодатель вправе, если иное не предусмотрено договором и не вытекает из существа залога, пользоваться предметом залога в соответствии с его назначением, в том числе извлекать из него плоды и доходы.
2. Если иное не предусмотрено законодательными актами или договором и не вытекает из существа залога, залогодатель вправе отчуждать предмет залога в собственность, в хозяйственное ведение или в оперативное управление, передавать его в аренду или безвозмездное пользование другому лицу либо иным образом распоряжаться им только с согласия залогодержателя.
Соглашение, ограничивающее право залогодателя завещать заложенное имущество, ничтожно.
3. Залогодержатель вправе пользоваться переданным ему предметом залога лишь в случаях, предусмотренных договором, регулярно представляя
залогодателю отчет о пользовании. По договору на залогодержателя может быть возложена обязанность извлекать из предмета залога плоды и доходы в целях погашения основного обязательства или в интересах залогодателя.
Сноска. Статья 315 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 316. Защита залогодержателем своих прав на предмет залога
1. Залогодержатель, у которого находилось или должно было находиться заложенное имущество, вправе истребовать его из чужого незаконного владения, в том числе и у самого залогодателя.
2. В случаях, когда по условиям договора залогодержателю предоставлено право пользоваться переданным ему предметом залога, он может требовать от других лиц, в том числе и от залогодателя, устранения всяких нарушений его права, хотя бы эти нарушения не были соединены с лишением владения.
Статья 317. Основания обращения взыскания на заложенное имущество
1. Взыскание на заложенное имущество для удовлетворения требований залогодержателя (кредитора) может быть обращено в случае неисполнения или ненадлежащего исполнения должником обеспеченного залогом обязательства, за которое он отвечает.
2. В обращении взыскания на заложенное имущество может быть отказано, если допущенное должником нарушение обеспеченного залогом обязательства крайне незначительно и размер требований залогодержателя вследствие этого явно несоразмерен стоимости заложенного имущества.
Нарушение обеспеченного залогом обязательства является крайне незначительным и размер требований залогодержателя явно несоразмерным стоимости заложенного имущества при одновременном наличии следующих условий:
1) сумма неисполненного обязательства (без учета неустойки (штрафа, пени) составляет менее десяти процентов от стоимости заложенного имущества, определенной сторонами в договоре о залоге;
2) период просрочки исполнения обязательства, обеспеченного залогом, составляет менее трех месяцев.
Сноска. Статья 317 с изменениями, внесенными Законом РК от 17.07.2015 № 333-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 318. Порядок обращения взыскания на предмет залога
1. Удовлетворение требования залогодержателя из стоимости заложенного имущества производится, если иное не установлено настоящим Кодексом и иными законодательными актами или договором, в судебном порядке.
2. В случаях, предусмотренных договором о залоге, а также настоящим Кодексом и иными законодательными актами, залогодержатель вправе самостоятельно реализовать находящееся в залоге имущество во внесудебном порядке путем проведения торгов (аукциона). Такое же право имеет банк-залогодержатель по реализации предмета залога, обеспечивающего денежную ссуду. Внесудебная реализация заложенного недвижимого имущества не допускается в случаях, предусмотренных законодательным актом Республики Казахстан об ипотеке недвижимого имущества.
Особенности обращения взыскания на предмет залога, являющегося обеспечением по займу в рамках осуществления мер по обеспечению стабильности финансовой системы, устанавливаются законами Республики Казахстан.
Сноска. Статья 318 с изменениями, внесенными законами РК от 10.02.2011 № 406-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 02.07.2018 № 168-VІ (порядок введения в действие см. ст. 2).
Статья 319. Реализация заложенного имущества
1. Реализация (продажа) заложенного имущества производится путем продажи с публичных торгов в порядке, установленном процессуальным законодательством, если законодательными актами не установлен иной порядок.
1-1. При залоге денег и прав (требований) по денежному обязательству реализация этого заложенного имущества производится путем передачи залогодержателю денег, являющихся предметом залога или причитающихся по заложенным правам (требованиям) по денежному обязательству, а при невозможности передачи денег в момент обращения взыскания на предмет залога - путем перевода на залогодержателя прав залогодателя на предмет залога.
Если сумма денег, являющихся предметом залога или причитающихся по заложенным правам (требованиям) по денежному обязательству, превышает размер обеспеченного залогом требования залогодержателя, разница возвращается залогодателю. При недостаточности суммы денег для покрытия
требования залогодержателя он имеет право, при отсутствии иного указания в законодательных актах или договоре, получить недостающую сумму из прочего имущества должника, не пользуясь преимуществом, основанным на залоге.
2. Особенности реализации заложенного имущества во внесудебном порядке устанавливаются настоящим Кодексом и Законом об ипотеке недвижимости. Правила и процедуры, установленные Законом об ипотеке недвижимости для реализации ипотеки, применяются к реализации имущества при исполнении других видов залога, если настоящим Кодексом не установлено иное.
3. По просьбе залогодателя суд вправе в решении об обращении взыскания на заложенное имущество отсрочить продажу с публичных торгов на срок до одного года заложенного имущества физических лиц и на срок до одного месяца заложенного имущества юридических лиц. Отсрочка не затрагивает прав и обязанностей сторон по обязательству, обеспеченному залогом этого имущества, и не освобождает должника от возмещения возросших за время отсрочки убытков кредитора и сумм неустойки.
4. В торгах имеют право принимать участие любые юридические лица и граждане, включая залогодателя и залогодержателя.
Перед началом торгов суд или доверенное лицо (статья 320 настоящего Кодекса) вправе потребовать от каждого участника торгов внесения гарантийного взноса. Гарантийные взносы подлежат возврату по окончании торгов. Гарантийный взнос участника, выигравшего торги, засчитывается в счет конечной цены. Гарантийный взнос участника, выигравшего торги, но не оплатившего конечную цену, не возвращается и остается в распоряжении суда или доверенного лица.
5. При объявлении торгов несостоявшимися, ввиду участия в них менее двух покупателей, залогодержатель вправе либо обратить заложенное имущество в свою собственность по его текущей оценочной стоимости, устанавливаемой решением суда или доверенным лицом на основании отчета об оценке, составленного оценщиком, либо требовать назначения новых торгов.
6. Если сумма, вырученная при реализации заложенного имущества, недостаточна для покрытия требования залогодержателя, он имеет право, при отсутствии иного указания в законодательных актах или договоре, получить недостающую сумму из прочего имущества должника, не пользуясь преимуществом, основанным на залоге.
Если сумма, вырученная при реализации заложенного имущества, превышает размер обеспеченного залогом требования залогодержателя, разница возвращается залогодателю.
7. Должник и залогодатель, являющийся третьим лицом (вещный поручитель) , вправе в любое время до того, как состоялась продажа предмета залога,
прекратить обращение на него взыскания и его реализацию, исполнив обеспеченное залогом обязательство или ту его часть, исполнение которой просрочено. Соглашение, ограничивающее это право, ничтожно.
Сноска. Статья 319 с изменениями, внесенными законами РК от 08.11.2000 N 96; от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 10.01.2018 № 134-VI (вводится в действие по истечении шести месяцев после дня его первого официального опубликования); от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Статья 320. Реализация заложенного имущества в принудительном внесудебном порядке
1. При реализации заложенного имущества в принудительном внесудебном порядке торги проводятся доверенным лицом, в качестве которого выступает юридическое лицо или гражданин, имеющее доверенность залогодержателя на реализацию заложенного имущества в случае нарушения обязательства, обеспеченного залогом.
2. Доверенное лицо выполняет следующие процедуры: 1) составляет уведомление залогодателю о невыполнении обязательств и
регистрирует его в органе, где был зарегистрирован договор о залоге; 2) при неудовлетворении требований, вытекающих из уведомления, но не
ранее, чем через тридцать дней с момента его отправки залогодателю, составляет уведомление о торгах на заложенное имущество, регистрирует его в органе, где был зарегистрирован договор о залоге, и вручает залогодателю или направляет его залогодателю заказным письмом по адресу, указанному в договоре залога;
3) официально публикует объявление о торгах в местной печати. Сноска. Статья 320 с изменениями, внесенными Законом РК от 25.03.2011 №
421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 321. Досрочное исполнение обязательства, обеспеченного залогом, и обращение взыскания на заложенное имущество
1. Залогодержатель вправе потребовать досрочного исполнения обеспеченного залогом обязательства в случаях:
1) если предмет залога выбыл из владения залогодателя, у которого он был оставлен, не в соответствии с условиями договора о залоге;
2) нарушения залогодателем правил о замене предмета залога (статья 314 настоящего Кодекса);
3) утраты предмета залога по обстоятельствам, за которые залогодержатель не отвечает (пункт 2 статьи 313 настоящего Кодекса), если залогодатель не воспользовался правом, предусмотренным пунктом 2 статьи 314 настоящего Кодекса.
4) обращения взыскания на предмет залога в целях исполнения обязательств залогодателя по исполнительным документам перед третьими лицами, не имеющими преимущества перед требованием залогодержателя, при отсутствии у залогодателя иного имущества.
2. Залогодержатель вправе потребовать досрочного исполнения обеспеченного залогом обязательства, а если его требование не будет удовлетворено, обратить взыскание на предмет залога в случае:
1) нарушения залогодателем правил о последующем залоге; 2) невыполнения залогодателем обязанностей, предусмотренных
подпунктами 1 и 2 пункта 1 и пунктом 2 статьи 312 настоящего Кодекса; 3) нарушения залогодателем правил о распоряжении заложенным
имуществом (пункт 2 статьи 315 настоящего Кодекса); 4) нарушения залогодателем обязательства, обеспеченного залогом (статьи
, и 722 настоящего Кодекса, статья 20 Закона Республики Казахстан от 23317 720 декабря 1995 года "Об ипотеке недвижимого имущества").
Сноска. Статья 321 с изменениями, внесенными законами РК от 02.04.2010 № 262-IV (вводится в действие с 21.10.2010); от 17.07.2015 № 333-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 322. Прекращение залога
1. Залог прекращается: 1) с прекращением обеспеченного залогом обязательства; 2) по требованию залогодателя при наличии оснований, предусмотренных
пунктом 3 статьи 312 настоящего Кодекса; 3) в случае гибели заложенной вещи или прекращения заложенного права,
если залогодатель не воспользовался правом, предусмотренным пунктом 2 статьи 314 настоящего Кодекса;
4) в случае продажи с публичных торгов заложенного имущества, а также в случае, когда его реализация оказалась невозможной (статья 319 настоящего Кодекса).
2. О прекращении залога должна быть сделана отметка в реестре, в котором был зарегистрирован договор о залоге.
3. При прекращении залога вследствие исполнения обеспеченного залогом обязательства либо по требованию залогодателя (пункт 3 статьи 312 настоящего Кодекса) залогодержатель, у которого находилось заложенное имущество, обязан немедленно возвратить его залогодателю.
Статья 323. Сохранение залога при переходе права на заложенное имущество к другому лицу в порядке правопреемства
1. В случае перехода права собственности на заложенное имущество или права хозяйственного ведения им от залогодателя к другому лицу в результате возмездного или безвозмездного отчуждения этого имущества либо в порядке универсального правопреемства право залога сохраняет силу.
Правопреемник залогодателя становится на место залогодателя и несет все обязанности залогодателя, если соглашением с залогодержателем не установлено иное.
2. Если имущество залогодателя, являющееся предметом залога, перешло в порядке правопреемства к нескольким лицам, каждый из правопреемников ( приобретателей имущества) несет вытекающие из залога последствия неисполнения обеспеченного залогом обязательства соразмерно перешедшей к нему части указанного имущества. Однако, если предмет залога неделим или по иным основаниям остается в общей совместной собственности правопреемников, они становятся солидарными залогодателями.
Статья 324. Последствия принудительного изъятия заложенного имущества
1. Если право собственности залогодателя на имущество, являющееся предметом залога, прекращается по основаниям и в порядке, установленным законодательными актами, вследствие изъятия (выкупа) для государственных нужд, реквизиции или национализации, и залогодателю предоставляется другое имущество или соответствующее возмещение, право залога распространяется на предоставленное взамен имущество либо, соответственно, залогодержатель приобретает право преимущественного удовлетворения своего требования из
суммы причитающегося залогодателю возмещения. Залогодержатель может также потребовать досрочного исполнения обеспеченного залогом обязательства (пункт 1 статьи 321 настоящего Кодекса).
2. В случаях, когда имущество, являющееся предметом залога, изымается у залогодателя в установленном законодательными актами порядке на том основании, что в действительности собственником этого имущества является другое лицо, либо в виде санкции за совершение административного или уголовного правонарушения, залог в отношении этого имущества прекращается. В этих случаях залогодержатель вправе требовать досрочного исполнения обеспеченного залогом обязательства.
Сноска. Статья 324 с изменением, внесенным Законом РК от 03.07.2014 № 227-V (вводится в действие с 01.01.2015).
Статья 325. Уступка прав по договору о залоге
1. Залогодержатель вправе передать свои права по договору о залоге другому лицу с соблюдением правил о передаче прав кредитора путем уступки требования ( -статьи 339 347 настоящего Кодекса).
2. Уступка залогодержателем своих прав по договору о залоге другому лицу действительна, если тому же лицу уступлены права требования к должнику по основному обязательству, обеспеченному залогом.
3. (исключен). Сноска. В статью 325 внесены изменения - Законом РК от 2 марта 1998 г. N
211.
Статья 326. Перевод долга по обязательству, обеспеченному залогом
С переводом на другое лицо долга по обязательству, обеспеченному залогом, залог прекращается, если залогодатель не дал кредитору согласия отвечать за нового должника.
Статья 327. Залог товаров в обороте
1. Залогом товаров в обороте признается залог товаров с оставлением их у залогодателя и с предоставлением залогодателю права изменять состав и натуральную форму заложенного имущества (товарных запасов, сырья, материалов, полуфабрикатов, готовой продукции и тому подобное).
2. Товары в обороте, отчужденные залогодателем, перестают быть предметом залога с момента их перехода в собственность, хозяйственное ведение или
оперативное управление приобретателя, а приобретенные залогодателем товары, указанные в договоре о залоге, становятся предметом залога с момента возникновения у залогодателя на них права собственности или хозяйственного ведения.
3. По соглашению сторон договором о залоге может быть предусмотрено условие о том, что общая стоимость залога товаров в обороте не должна становиться меньше стоимости, указанной в договоре о залоге.
Уменьшение стоимости заложенных товаров в обороте допускается соразмерно исполненной части обеспеченного залогом обязательства, если иное не предусмотрено договором.
4. При нарушении залогодателем условий залога товаров в обороте залогодержатель вправе путем наложения своих знаков на заложенные товары приостановить операции с ними до устранения нарушения.
Сноска. Статья 327 с изменениями, внесенными законами РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 24.05.2018 № 156-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.04.2019 № 241-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 328. Залог вещей в ломбарде
1. Принятие от граждан в залог движимого имущества, предназначенного для личного пользования, в обеспечение краткосрочных займов может осуществляться в качестве предпринимательской деятельности юридическими лицами, зарегистрированными в качестве ломбардов, исключительными видами деятельности которых являются:
1) предоставление краткосрочных займов на срок не более одного года под залог движимого имущества;
2) учет, хранение и продажа ювелирных изделий, содержащих драгоценные металлы и драгоценные камни.
Ломбарды вправе осуществлять инвестиционную деятельность. 2. Договор о залоге вещей в ломбарде оформляется выдачей ломбардом
залогового билета и может содержать требование о страховании залогового имущества. Страхование залогового имущества осуществляется за счет ломбарда .
2-1. Договор о залоге вещей в ломбарде прекращается в связи с реализацией предмета залога.
3. Ломбард не вправе пользоваться и распоряжаться заложенными вещами. 4. Ломбард несет ответственность за утрату и повреждение заложенных
вещей, если не докажет, что утрата или повреждение произошли вследствие непреодолимой силы.
5. Ломбарды осуществляют свою деятельность только при наличии Правил проведения ломбардных операций, которые утверждаются высшим органом ломбарда и должны содержать следующую информацию:
1) предельные суммы и сроки предоставляемых кредитов; 2) предельные величины ставок вознаграждения по предоставляемым
кредитам; 3) ставки и тарифы за проведение операций; 4) права и обязанности ломбарда и его клиентов, их ответственность; 5) порядок выдачи залогодателю дубликатов при утере залогового билета; 6) иные условия. Правила проведения ломбардных операций подлежат размещению в месте,
доступном для обозрения клиентами ломбарда. Ломбарды о начале или прекращении своей деятельности обязаны уведомить
уполномоченный орган по финансовому мониторингу в порядке, установленном Законом Республики Казахстан "О разрешениях и уведомлениях".
6. Условия договора о залоге вещей в ломбарде, ограничивающие права залогодателя по сравнению с правами, предоставленными ему настоящим Кодексом, не действительны с момента заключения договора. Вместо таких условий применяются соответствующие положения настоящего Кодекса.
7. Ломбарды обязаны соблюдать требования, предусмотренные законодательством Республики Казахстан о противодействии легализации ( отмыванию) доходов, полученных преступным путем, и финансированию терроризма.
Сноска. Статья 328 в редакции Закона РК от 23.12.2005 № 107 (порядок введения в действие см. ст.2); с изменениями, внесенными законами РК от 02.08.2015 № 343-V (вводится в действие с 20.04.2016); от 21.01.2019 № 217-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Параграф 4. ГАРАНТИЯ И ПОРУЧИТЕЛЬСТВО
Сноска. Параграф 4 в редакции Закона РК от 11.07.1997 № 154.
Статья 329. Гарантия
1. В силу гарантии гарант обязывается перед кредитором другого лица ( должника) отвечать за исполнение обязательства этого лица полностью или частично солидарно с должником, за исключением случаев, предусмотренных законодательными актами.
2. Лица, совместно давшие гарантию, отвечают перед кредитором солидарно, если иное не установлено договором гарантии.
3. Договор гарантии может быть заключен также для обеспечения обязательства, которое возникнет в будущем.
Статья 330. Поручительство
В силу поручительства поручитель обязуется перед кредитором другого лица (должника) отвечать за исполнение обязательства этого лица полностью или частично субсидиарно.
Статья 331. Основания и форма гарантии и поручительства
1. Гарантия и поручительство возникают на основании договоров поручительства или гарантии. Применение гарантии может быть установлено законодательством.
2. Договоры гарантии или поручительства должны быть совершены в письменной форме. Несоблюдение письменной формы влечет ничтожность договора гарантии или поручительства.
3. Письменная форма договоров гарантии или поручительства считается соблюденной, если гарант или поручитель письменно уведомил кредитора о своей ответственности за исполнение обязательства должником, а кредитор не отказался от предложений гаранта или поручителя в течение нормально необходимого для этого времени.
4. Банки второго уровня могут осуществлять выдачу банковских гарантий и поручительств на основании лицензии уполномоченного органа в соответствии с настоящим Кодексом и с учетом нормативных правовых актов уполномоченного органа, регулирующих порядок проведения указанных операций.
Выдача банками второго уровня банковских гарантий и поручительств без соблюдения норм настоящего Кодекса и учета требований нормативных правовых актов уполномоченного органа влечет их недействительность.
Сноска. Статья 332 с изменениями, внесенными законами РК от 02.03.2001 № 162; от 10.07.2003 N 483 (вводится в действие с 01.01.2004); от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 332. Ответственность гаранта и поручителя
1. Если иное не установлено договором, гарантия и поручительство обеспечивают лишь действительное требование. Гарант и поручитель не освобождаются от ответственности, если они поручились за должника, о недееспособности которого им было заранее известно, в то время как кредитор об этом обстоятельстве не знал.
2. Гарант отвечает перед кредитором в том же объеме, как и должник, включая уплату неустойки, вознаграждения (интереса), судебные издержки по взысканию долга и другие убытки кредитора, вызванные неисполнением или ненадлежащим исполнением обязательства должником, если иное не установлено договором гарантии.
3. Поручитель несет перед кредитором ответственность в пределах суммы, указанной в поручительстве, если иное не предусмотрено условиями поручительства. До предъявления требований к поручителю, несущему субсидиарную ответственность, кредитор должен принять разумные меры к удовлетворению этого требования должником, в частности, путем зачета встречного требования и обращения взыскания в установленном порядке на имущество должника.
Статья 333. Права и обязанности гаранта в случае предъявления к нему требования кредитором
1. Гарант обязан до удовлетворения требования кредитора предупредить об этом должника, а если к гаранту предъявлен иск - привлечь должника к участию в деле. В противном случае должник имеет право выдвинуть против обратного требования гаранта все возражения, которые он имел против кредитора.
2. Гарант вправе выдвигать против требования кредитора возражения, которые мог бы представить должник, если иное не вытекает из договора гарантии. Гарант не теряет право на эти возражения даже в том случае, если должник от них отказался или признал свой долг.
Статья 334. Права гаранта и поручителя, исполнивших обязательство
1. К гаранту, исполнившему обязательство, переходят все права кредитора по этому обязательству и права, принадлежавшие кредитору как залогодержателю, в том объеме, в котором гарант удовлетворил требование кредитора. Гарант также
вправе требовать от должника уплату неустойки и вознаграждения (интереса) на сумму, выплаченную кредитору, и возмещение иных убытков, понесенных в связи с ответственностью за должника.
2. По исполнении гарантом обязательства кредитор обязан вручить гаранту документы, удостоверяющие требование к должнику, и передать права, обеспечивающие это требование.
3. Правила, установленные пунктами 1 и 2 настоящей статьи, применяются, если иное не установлено законодательством или договором гаранта с должником и не вытекает из отношений между ними.
4. Поручитель приобретает те же права в части, в которой он исполнил обязательство должника перед кредитором.
Статья 335. Извещение гаранта и поручителя об исполнении обязательства должником
Должник, исполнивший обязательство, обеспеченное гарантией или поручительством, обязан немедленно известить об этом гаранта или поручителя. В противном случае гарант или поручитель, в свою очередь исполнившие обязательство, вправе взыскать с кредитора неосновательно полученное либо предъявить регрессное требование к должнику. В последнем случае должник вправе взыскать с кредитора лишь неосновательно полученное.
Статья 336. Прекращение гарантии и поручительства
1. Гарантия и поручительство прекращаются с прекращением обеспеченного им обязательства, если договором не предусмотрены иные случаи прекращения гарантии, а также в случае изменения этого обязательства, влекущего увеличение ответственности или иные неблагоприятные последствия для гаранта и поручителя, без согласия последних.
2. Гарантия и поручительство прекращаются с переводом на другое лицо долга по обеспеченному гарантией или поручительством обязательству, если гарант или поручитель не дали кредитору согласия отвечать за нового должника.
3. Гарантия и поручительство прекращаются, если по наступлении срока исполнения обеспеченного им обязательства кредитор отказался принять надлежащее исполнение, предложенное должником или гарантом и поручителем.
4. Гарантия и поручительство прекращаются по истечении срока, на который они даны, указанного в договоре гарантии или поручительства. Если такой срок не установлен, они прекращаются, если кредитор в течение одного года со дня наступления срока исполнения обеспеченного гарантией или поручительством обязательства не предъявит иска к гаранту или поручителю. Когда срок
исполнения основного обязательства не указан и не может быть определен или определен моментом востребования, гарантия и поручительство прекращаются, если кредитор не предъявит иска к гаранту или поручителю в течение двух лет со дня заключения договора гарантии или поручительства, если иное не предусмотрено законодательными актами.
Сноска. Статья 336 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Параграф 5. Задаток
Статья 337. Понятие задатка. Форма соглашения о задатке
1. Задатком признается денежная сумма, выдаваемая одной из договаривающихся сторон в счет причитающихся с нее по договору платежей другой стороне и в обеспечение заключения и исполнения договора либо исполнения иного обязательства.
2. Соглашение о задатке независимо от суммы задатка должно быть заключено в письменной форме. Это правило применяется и в том случае, когда основное обязательство должно быть нотариально удостоверено. Несоблюдение письменной формы влечет ничтожность соглашения о задатке.
Сноска. Статья 337 с изменениями, внесенными законами РК от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 338. Последствия прекращения и неисполнения обязательства, обеспеченного задатком
1. При прекращении обязательства до начала его исполнения по соглашению сторон либо вследствие невозможности исполнения, наступившей без их вины, задаток должен быть возвращен.
2. Если за неисполнение обязательства ответственна сторона, давшая задаток, он остается у другой стороны, а если ответственна сторона, получившая задаток, она обязана уплатить другой стороне двойную сумму задатка. Сверх того, сторона, ответственная за неисполнение обязательства, обязана возместить другой стороне убытки с учетом суммы задатка, поскольку в договоре не предусмотрено иное.
Параграф 6. Удержание
Сноска. Кодекс дополнен параграфом 6 в соответствии с Законом РК от 12 января 2007 года N 225 (вводится в действие со дня его официального о п у б л и к о в а н и я ) .
Статья 338-1. Общие положения об удержании
1. Кредитор, у которого находится вещь, подлежащая передаче должнику либо лицу, указанному должником, вправе в случае неисполнения должником в срок обязательства по оплате этой вещи или возмещению кредитору связанных с нею издержек и других убытков удерживать ее до тех пор, пока соответствующее обязательство не будет исполнено.
Удержанием вещи могут обеспечиваться также требования, хотя и не связанные с оплатой вещи или возмещением издержек на нее и других убытков, но возникающие из обязательства, стороны которого действуют как предприниматели.
2. Кредитор может удерживать находящуюся у него вещь несмотря на то, что после того, как эта вещь поступила во владение кредитора, права на нее приобретены третьим лицом.
3. Правила настоящей статьи применяются, если договором не предусмотрено иное.
Статья 338-2. Удовлетворение требований за счет удерживаемого имущества
Требования кредитора, удерживающего вещь, удовлетворяются из ее стоимости в объеме и порядке, предусмотренных для удовлетворения требований, обеспеченных залогом.
Параграф 7. Гарантийный взнос
Сноска. Глава 18 дополнена параграфом 7 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 338-3. Понятие гарантийного взноса
1. Гарантийным взносом признается денежная сумма, передаваемая плательщиком гарантийного взноса получателю гарантийного взноса в
обеспечение исполнения обязательства по заключению договора при торгах или исполнении иного обязательства.
2. Обязательство по оплате гарантийного взноса возникает в случаях, предусмотренных законодательными актами. Обязательство по оплате гарантийного взноса возникает также в силу соглашения сторон.
Статья 338-4. Последствия неисполнения, прекращения или исполнения обязательства, обеспеченного гарантийным взносом
1. При неисполнении обязательства, обеспеченного гарантийным взносом, по вине плательщика гарантийный взнос остается у другой стороны.
2. При неисполнении обязательства, обеспеченного гарантийным взносом, по вине получателя гарантийного взноса либо прекращении этого обязательства по соглашению сторон или вследствие невозможности исполнения, наступившей без их вины, гарантийный взнос подлежит возврату.
3. При заключении договора или исполнении иного обязательства, обеспеченного гарантийным взносом, сумма гарантийного взноса засчитывается в счет причитающихся получателю гарантийного взноса платежей от другой стороны по заключенному договору или иному обеспеченному гарантийным взносом обязательству, если иное не предусмотрено настоящим Кодексом, иными законодательными актами, соглашением сторон или не вытекает из существа обязательства.
Глава 19. Перемена лиц в обязательстве
Статья 339. Основания и порядок перехода прав кредитора к другому лицу
1. Право (требование), принадлежащее кредитору на основании обязательства , может быть передано им другому лицу по сделке (уступка требования) или перейти к другому лицу на основании законодательного акта.
Правила о переходе прав кредитора к другому лицу не применяются к регрессным требованиям.
2. Для перехода к другому лицу прав кредитора не требуется согласия должника, если иное не предусмотрено законодательными актами или договором .
3. Если должник не был письменно уведомлен о состоявшемся переходе прав кредитора к другому лицу, новый кредитор несет риск вызванных этим для него неблагоприятных последствий. В этом случае исполнение обязательства первоначальному кредитору признается исполнением надлежащему кредитору.
4. Особенности уступки права требования по отдельным видам обязательства могут быть установлены законодательными актами.
Сноска. Статья 339 дополнена пунктом 4 - Закон РК от 2 марта 1998 г. N 211.
Статья 340. Права, которые не могут переходить к другим лицам
Переход к другому лицу прав, неразрывно связанных с личностью кредитора, в частности требований об алиментах и о возмещении вреда, причиненного жизни или здоровью, не допускается.
Статья 341. Объем прав кредитора, переходящих к другому лицу
Если иное не предусмотрено законодательными актами или договором, право первоначального кредитора переходит к новому кредитору в том объеме и на тех условиях, которые существовали к моменту перехода права. В частности, к новому кредитору переходят права, обеспечивающие исполнение обязательства, а также другие связанные с требованием права, в том числе право на неполученное вознаграждение (интерес).
Сноска. В статью 341 внесены изменения - Законом РК от 11 июля 1997 г. N 154.
Статья 342. Доказательства прав нового кредитора
1. Должник вправе не исполнять обязательство новому кредитору до представления ему доказательств перехода требования к этому лицу.
2. Кредитор, уступивший требование другому лицу, обязан передать ему документы, удостоверяющие право требования, и сообщить сведения, имеющие значение для осуществления требования.
Статья 343. Возражения должника против требования нового кредитора
Должник вправе выдвигать против требования нового кредитора возражения, которые он имел против первоначального кредитора к моменту получения уведомления о переходе прав по обязательству к новому кредитору.
Статья 344. Переход прав кредитора к другому лицу на основании законодательных актов
Права кредитора по обязательству переходят к другому лицу на основании законодательных актов и наступления указанных в них обстоятельств:
1) в результате универсального правопреемства в правах кредитора; 2) по решению суда о переводе прав кредитора на другое лицо, когда
возможность такого перевода предусмотрена законодательными актами; 3) вследствие исполнения обязательства его гарантом, поручителем или
залогодателем, не являющимся должником по этому обязательству; 4) при суброгации страховщику прав кредитора к должнику, ответственному
за наступление страхового случая; 5) в других случаях, предусмотренных законодательными актами. Сноска. В статью 344 внесены изменения - Законом РК от 2 марта 1998 г. №
211.
Статья 345. Условия уступки требования
1. Уступка требования кредитором другому лицу допускается, поскольку она не противоречит законодательству или договору.
2. Не допускается без согласия должника уступка требования по обязательству, в котором личность кредитора имеет существенное значение для должника.
Статья 346. Форма уступки требования
1. Уступка требования, основанного на сделке, совершенной в письменной ( простой или нотариальной) форме, должна быть совершена в соответствующей письменной форме.
2. Уступка требования по сделке, требующей государственной регистрации, должна быть зарегистрирована в порядке, установленном для регистрации этой сделки.
3. Уступка требования по ордерной ценной бумаге совершается путем индоссамента на этой ценной бумаге (пункт 3 статьи 132 настоящего Кодекса).
Статья 347. Ответственность кредитора, уступившего требование
Первоначальный кредитор, уступивший требование, отвечает перед новым кредитором за недействительность переданного ему требования, но не отвечает за неисполнение этого требования должником, кроме случая, когда
426
первоначальный кредитор принял на себя поручительство за должника перед новым кредитором, а также, если иное не предусмотрено настоящим Кодексом или договором.
Сноска. В статью 347 внесены изменения - Законом РК от 3 июня 2003 г. N
Статья 348. Перевод долга
1. Перевод должником своего долга на другое лицо допускается лишь с согласия кредитора.
2. Новый должник вправе выдвигать против требования кредитора возражения, основанные на отношениях между кредитором и первоначальным должником.
3. К форме перевода долга соответственно применяются правила, содержащиеся в пунктах 1 и 2 статьи 346 настоящего Кодекса.
4. Особенности перевода долга по отдельным видам обязательства могут быть установлены законодательными актами.
Сноска. Статья 348 дополнена пунктом 4 - Закон РК от 2 марта 1998 г. N 211.
Глава 20. Ответственность за нарушение обязательства
Статья 349. Понятие нарушения обязательства
1. Под нарушением обязательства понимается его неисполнение либо исполнение ненадлежащим образом (несвоевременное, с недостатками товаров и работ, с нарушением других условий, определенных содержанием обязательства) - ненадлежащее исполнение. При возникшей невозможности надлежащего исполнения должник обязан незамедлительно известить об этом кредитора.
2. Привлечение должника к ответственности за нарушение обязательства производится по требованию кредитора.
Статья 350. Возмещение убытков, вызванных нарушением обязательства
1. Должник, нарушивший обязательство, обязан возместить кредитору вызванные нарушением убытки (пункт 4 статьи 9 настоящего Кодекса). Возмещение убытков в обязательствах, обеспеченных неустойкой, определяется правилами, предусмотренными статьей 351 настоящего Кодекса.
2. Принятое до нарушения обязательства соглашение сторон об освобождении должника от возмещения убытков, вызванных нарушением,
ничтожно, однако стороны по взаимному соглашению могут предусмотреть взыскание только реального ущерба в имуществе.
3. Если иное не предусмотрено законодательством или договором, при определении убытков принимаются во внимание цены, существовавшие в том месте, где обязательство должно было быть исполнено, в день добровольного удовлетворения должником требования кредитора, а если требование добровольно удовлетворено не было, - в день предъявления иска. Исходя из обстоятельств, суд может удовлетворить требование о возмещении убытков, принимая во внимание цены, существующие в день вынесения решения либо в день фактического платежа.
4. При определении размера упущенной выгоды учитываются меры, предпринятые кредитором для ее получения и сделанные с этой целью приготовления.
5. Кредитор вправе требовать признания недействительным любого действия должника, а также собственника его имущества, если докажет, что оно совершено с целью уклониться от ответственности за нарушение обязательства.
Сноска. Статья 350 с изменениями, внесенными законами РК от 2 марта 1998 г. N 211; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 351. Убытки и неустойка
1. Если за неисполнение или ненадлежащее исполнение обязательства установлена неустойка, то убытки возмещаются в части, не покрытой неустойкой .
Законодательными актами Республики Казахстан или договором могут быть предусмотрены случаи: когда убытки могут быть взысканы в полной сумме сверх неустойки; когда по выбору кредитора могут быть взысканы либо неустойка, либо убытки.
Случаи, при которых за неисполнение или ненадлежащее исполнение обязательства может устанавливаться только неустойка, определяются законодательными актами Республики Казахстан.
2. В случаях, когда за неисполнение или ненадлежащее исполнение обязательства установлена ограниченная ответственность, убытки, подлежащие возмещению в части, не покрытой неустойкой, либо сверх, либо вместо нее, могут быть взысканы до пределов, установленных таким ограничением.
Сноска. Статья 351 с изменениями, внесенными Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 352. Возмещение морального ущерба, причиненного нарушением обязательства
Моральный ущерб, причиненный нарушением обязательства, возмещается сверх убытков, предусмотренных статьей 350 настоящего Кодекса.
Статья 353. Ответственность за неправомерное пользование чужими деньгами
1. За неправомерное пользование чужими деньгами в результате неисполнения денежного обязательства либо просрочки в их уплате, либо их неосновательного получения или сбережения за счет другого лица подлежит уплате неустойка. Размер неустойки исчисляется, исходя из официальной ставки рефинансирования Национального Банка Республики Казахстан на день исполнения денежного обязательства или его соответствующей части. При взыскании долга в судебном порядке суд может удовлетворить требование кредитора, исходя из официальной ставки рефинансирования Национального Банка Республики Казахстан на день предъявления иска или на день вынесения решения, или на день фактического платежа по выбору кредитора. Эти правила применяются, если иной размер неустойки не установлен законодательными актами или договором.
2. Неустойка за пользование чужими деньгами взимается по день уплаты суммы этих денег кредитору, если законодательством или договором не установлен иной порядок исчисления суммы неустойки.
3. Если убытки, причиненные кредитору неправомерным пользованием его деньгами, превышают сумму неустойки, причитающейся ему на основании пункта 1 настоящей статьи, он вправе требовать от должника возмещения убытков в части, превышающей эту сумму.
Сноска. Статья 353 - в редакции Закона РК от 11 июля 1997 г. N 154. Статья с изменениями, внесенными Законом РК от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 354. Ответственность и исполнение обязательства в натуре
1. Уплата неустойки и возмещение убытков в случае ненадлежащего исполнения обязательства не освобождают должника от исполнения обязательства, если иное не предусмотрено законодательными актами или договором.
2. Возмещение убытков в случае неисполнения обязательства и уплата неустойки за его неисполнение освобождают должника от исполнения обязательства в натуре, если иное не предусмотрено законодательными актами или договором.
3. Отказ кредитора от принятия исполнения, которое вследствие просрочки утратило для него интерес (статья 365 настоящего Кодекса), а также уплата денежной суммы, установленной в качестве отступного (статья 369 настоящего Кодекса), освобождают должника от исполнения обязательства в натуре.
Сноска. В статью 354 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 355. Последствия неисполнения обязательства передать индивидуально определенную вещь
1. В случае неисполнения обязательства передать индивидуально определенную вещь в собственность, хозяйственное ведение, оперативное управление или в пользование кредитору, последний вправе требовать изъятия этой вещи у должника и передачи ее кредитору, кроме случаев, когда третье лицо имеет преимущественное право на эту вещь.
2. Передача вещи не освобождает должника от возмещения убытков.
Статья 356. Исполнение обязательства за счет должника
В случае неисполнения должником обязательства изготовить и передать вещь кредитору либо выполнить для него определенную работу или оказать услугу кредитор вправе в разумный срок поручить выполнение обязательства третьим лицам за разумную цену либо выполнить его своими силами, поскольку иное не вытекает из законодательства, договора или существа обязательства, и потребовать от должника возмещения понесенных необходимых расходов и других убытков.
Статья 357. Субсидиарная ответственность
1. До предъявления требований к лицу, которое в соответствии с законодательством или условиями обязательства несет ответственность дополнительно к ответственности другого лица, являющегося основным должником (субсидиарную ответственность), кредитор должен предъявить требование к основному должнику.
Если основной должник отказался удовлетворить или не исполнил полностью требование кредитора или кредитор не получил от него в разумный срок ответа на предъявленное требование, это требование в неисполненной части может быть предъявлено лицу, несущему субсидиарную ответственность.
2. Кредитор не вправе требовать удовлетворения своего требования к основному должнику от лица, несущего субсидиарную ответственность, если это требование может быть удовлетворено путем зачета встречного требования к основному должнику (статья 370 настоящего Кодекса).
3. Лицо, несущее субсидиарную ответственность, должно до удовлетворения требования, предъявленного ему кредитором, предупредить об этом основного должника, а если к такому лицу предъявлен иск - привлечь основного должника к участию в деле.
В противном случае основной должник имеет право выдвинуть против регрессного требования лица, отвечающего субсидиарно, возражения, которые он имел против кредитора.
Сноска. В статью 357 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 358. Ограничение размера ответственности по обязательствам
1. По отдельным видам обязательств и по обязательствам, связанным с определенным родом деятельности, законодательными актами может быть ограничено право на полное возмещение убытков (ограниченная ответственность ).
2. Соглашение об ограничении размера ответственности должника по договору присоединения или иному договору, в котором кредитором является гражданин, выступающий в качестве потребителя, ничтожно, если размер ответственности для данного вида обязательств или за данное нарушение определен законодательством.
Сноска. Статья 358 с изменениями, внесенными законами РК от 2 марта 1998 г. N 211; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 359. Основания ответственности за нарушение обязательства
1. Должник отвечает за неисполнение и (или) ненадлежащее исполнение обязательства при наличии вины, если иное не предусмотрено
законодательством или договором. Должник признается невиновным, если докажет, что он принял все зависящие от него меры для надлежащего исполнения обязательства.
2. Лицо, не исполнившее или ненадлежащим образом исполнившее обязательство при осуществлении предпринимательской деятельности, несет имущественную ответственность, если не докажет, что надлежащее исполнение оказалось невозможным вследствие непреодолимой силы, то есть чрезвычайных и непредотвратимых при данных условиях обстоятельствах (стихийные явления, военные действия и т.п.). К таким обстоятельствам не относится, в частности, отсутствие на рынке нужных для исполнения товаров, работ или услуг.
Законодательством или договором могут быть предусмотрены иные основания ответственности или освобождения от нее.
3. Заключенное заранее соглашение об устранении или ограничении ответственности за умышленное нарушение обязательства ничтожно.
Сноска. Статья 359 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 360. Предпринимательский риск в обязательстве
Если обязательством предусмотрено исполнение какой-либо работы по заказу предпринимателя, риск невозможности или нецелесообразности использовать результаты работы возлагается на предпринимателя. Лицо, надлежащим образом исполнившее работу, вправе получить оплату, соразмерно степени исполнения, кроме случаев, когда договором предусмотрено иное распределение предпринимательского риска.
Статья 361. Последствия невозможности исполнения двустороннего договора
Если в двустороннем договоре исполнение для одной стороны стало невозможным вследствие обстоятельства, за которое ни одна сторона не отвечает , то ни одна из сторон, поскольку в законодательном акте или договоре не предусмотрено иное, не вправе требовать исполнения договора. Каждая из сторон вправе требовать в этом случае возврата всего, что она исполнила, не получив соответствующего встречного исполнения.
Статья 362. Ответственность должника за своих работников
Действия должностных лиц либо иных работников должника по исполнению его обязательства считаются действиями должника. Должник отвечает за эти действия, если они повлекли неисполнение или ненадлежащее исполнение обязательства.
Статья 363. Ответственность должника за действия третьих лиц
1. Должник несет перед кредитором ответственность и в случаях, когда причиной нарушения обязательства послужили действия либо бездействия третьих лиц по их обязательствам перед должником.
Должник несет ответственность также за действия либо бездействие третьих лиц, на которых должником было возложено исполнение его обязанности перед кредитором, если законодательством не установлено, что ответственность несет непосредственный исполнитель.
2. Должник может быть освобожден от ответственности за нарушение обязательства, вызванное действиями или бездействием третьих лиц, доказав их невиновность.
При осуществлении предпринимательской деятельности должник может быть освобожден от ответственности за нарушение, вызванное действиями или бездействием третьих лиц, если это обусловлено непреодолимой силой (пункт 2 статьи 359 настоящего Кодекса).
3. При нарушении обязательства, связанного с обременением предмета обязательства правами третьих лиц, должник освобождается от ответственности лишь в случае, если такие обременения возникли до заключения договора с кредитором и последний при заключении договора был о них предупрежден.
4. Законодательством или договором могут быть предусмотрены иные условия ответственности должника за действия третьих лиц.
Статья 364. Вина кредитора
1. Если неисполнение или ненадлежащее исполнение обязательства произошло по вине обеих сторон, суд соответственно уменьшает размер ответственности должника. Суд также уменьшает размер ответственности должника, если кредитор умышленно или по неосторожности содействовал увеличению размера убытков, причиненных неисполнением или ненадлежащим исполнением, либо не принял разумных мер к их уменьшению.
2. Правила пункта 1 настоящей статьи соответственно применяются и в случаях, когда должник в силу законодательного акта или договора несет ответственность за неисполнение или ненадлежащее исполнение обязательства независимо от своей вины.
Сноска. В статью 364 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 365. Просрочка должника
1. Должник, просрочивший исполнение, отвечает перед кредитором за убытки, причиненные просрочкой, и за последствия случайно наступившей во время просрочки невозможности исполнения.
2. Если вследствие просрочки должника исполнение утратило интерес для кредитора, он может отказаться от принятия исполнения и требовать возмещения убытков.
3. Должник не считается просрочившим, пока обязательство не может быть исполнено вследствие просрочки кредитора (статья 366 настоящего Кодекса).
Статья 366. Просрочка кредитора
1. Кредитор считается просрочившим, если он отказался принять надлежащее исполнение, предложенное должником, или не совершил действий, предусмотренных законодательством или договором либо вытекающих из обычаев делового оборота или из существа обязательства, до совершения которых должник не мог исполнить своего обязательства.
Кредитор считается просрочившим также в случае отказа надлежаще подтвердить произведенное должником исполнение обязательства.
2. Просрочка кредитора дает должнику право на возмещение причиненных просрочкой убытков, если кредитор не докажет, что просрочка произошла по обстоятельствам, за которые ни он сам, ни те лица, на которых в силу законодательства или поручения кредитора было возложено принятие исполнения, не отвечают.
На кредитора, допустившего просрочку, возлагаются все неблагоприятные последствия наступившей во время просрочки случайной невозможности исполнения обязательства.
3. По денежному обязательству должник не обязан платить вознаграждение ( интерес) за время просрочки кредитора.
Сноска. В статью 366 внесены изменения - Законом РК от 11 июля 1997 г. N 154.
Глава 21. Прекращение обязательства
Статья 367. Основания прекращения обязательства
1. Обязательства прекращаются полностью или в части исполнением, предоставлением отступного, зачетом, новацией, прощением долга, совпадением должника и кредитора в одном лице, невозможностью исполнения, изданием акта государственного органа, смертью гражданина, ликвидацией юридического лица.
2. Прекращение обязательства по требованию одной из сторон допускается только в случаях, предусмотренных законодательством.
3. Законодательством и договором могут быть предусмотрены иные основания прекращения обязательств.
Статья 368. Прекращение обязательства исполнением
1. Исполнение, произведенное надлежащим образом, прекращает обязательство.
2. (исключен) Сноска. В статью 368 внесены изменения - Законом РК от 2 марта 1998 г. N
211.
Статья 369. Отступное
По соглашению сторон обязательство может быть прекращено предоставлением взамен исполнения отступного (уплатой денег, передачей имущества и т.п.). Размер, сроки и порядок предоставления отступного устанавливаются сторонами.
Статья 370. Прекращение обязательства зачетом
1. Обязательство прекращается полностью или в части зачетом встречного однородного требования, срок которого наступил, либо срок которого не указан или определен моментом востребования. Для зачета достаточно заявления одной стороны.
2. Не допускается зачет требований: 1) если по заявлению одной из сторон к требованию подлежит применению
срок исковой давности и этот срок истек; 2) о возмещении вреда, причиненного жизни или здоровью; 3) о взыскании алиментов; 4) о пожизненном содержании;
4-1) к банку, лишенному лицензии либо находящемуся в процессе консервации или ликвидации, если требования кредитора возникают из договора (договоров) уступки права требования;
5) в иных случаях, предусмотренных законодательством или договором. 3. В случае уступки требования должник вправе зачесть против требования
нового кредитора свое встречное требование к первоначальному кредитору. Зачет производится, если требование возникло по основанию,
существовавшему к моменту получения должником уведомления об уступке требования, и срок требования наступил до его получения либо этот срок не указан или определен моментом востребования.
Сноска. Статья 370 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 23.12.2005 N 107 (порядок введения в действие см. ст.2 Закона N 107); от 10.02.2011 № 406-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 371. Прекращение обязательства совпадением должника и кредитора в одном лице
Обязательство прекращается совпадением должника и кредитора в одном лице.
Статья 372. Прекращение обязательства новацией
1. Обязательство прекращается соглашением сторон о замене первоначального обязательства, существовавшего между ними, другим обязательством между теми же лицами, предусматривающим иной предмет или способ исполнения (новация).
2. Новация не допускается в отношении обязательств по возмещению вреда, причиненного жизни или здоровью, и по уплате алиментов.
3. Новация прекращает дополнительные обязательства, связанные с первоначальным, если иное не предусмотрено соглашением сторон.
Сноска. В статью 372 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 373. Прощение долга
Обязательство прекращается освобождением кредитором должника от лежащих на нем обязанностей, если это не нарушает прав других лиц в отношении имущества кредитора.
Статья 374. Прекращение обязательства невозможностью исполнения
1. Обязательство прекращается невозможностью исполнения, если она вызвана обстоятельством, за которое должник не отвечает. Действие настоящего правила не распространяется на денежные обязательства.
2. В случае невозможности исполнения стороной обязательства, вызванной обстоятельством, за которое ни она, ни другая сторона не отвечает, она не вправе требовать от другой стороны исполнения по обязательству, если иное не предусмотрено законодательством или договором. При этом каждая сторона, исполнившая обязательство, вправе требовать возвращения исполненного.
3. В случае невозможности исполнения должником обязательства, вызванной виновными действиями кредитора, последний не вправе требовать возвращения исполненного им по обязательству.
Статья 375. Прекращение обязательства на основании акта государственного органа
1. Если в результате издания акта государственными органами, включая местные представительные и исполнительные органы (публичного акта), исполнение обязательства становится невозможным полностью или частично, обязательство прекращается полностью или в соответствующей части. Стороны, понесшие в результате этого убытки, вправе требовать их возмещения в соответствии с настоящим Кодексом.
2. В случае признания в установленном порядке недействительным публичного акта, на основании которого обязательство прекратилось, обязательство восстанавливается, если иное не вытекает из соглашения сторон или существа обязательства и исполнение не утратило интерес для кредитора.
Статья 376. Прекращение обязательства смертью гражданина
1. Обязательство прекращается смертью должника, если исполнение не может быть произведено без личного участия должника либо обязательство иным образом неразрывно связано с личностью должника.
2. Обязательство прекращается смертью кредитора, если исполнение предназначено лично для кредитора либо обязательство иным образом неразрывно связано с личностью кредитора.
Статья 377. Прекращение обязательства ликвидацией юридического лица
1. Обязательство прекращается ликвидацией юридического лица (должника или кредитора), кроме случаев, когда законодательством исполнение обязательства ликвидированного юридического лица возлагается на другое
юридическое лицо (по обязательствам, возникающим вследствие причинения вреда жизни и здоровью и др.).
2. Прекращение деятельности или реорганизация государственных органов, включая местные представительные и исполнительные органы, не влечет прекращения обязательств, не исполненных этими органами. Исполнение указанных обязательств возлагается на орган, в распоряжении которого находятся средства бюджета, если решением о прекращении деятельности или реорганизации соответствующих органов не определен иной государственный орган, на который возлагается исполнение обязательства.
Сноска. Статья 377 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Подраздел 2. Общие положения о договоре Глава 22. Понятие и условия договора
Статья 378. Понятие договора
1. Договором признается соглашение двух или нескольких лиц об установлении, изменении или прекращении гражданских прав и обязанностей.
2. К договору применяются правила о двух- и многосторонних сделках, предусмотренные главой 4 настоящего Кодекса.
3. К договорам, заключенным более чем двумя сторонами (многосторонние договоры), общие положения о договоре применяются, если это не противоречит многостороннему характеру таких договоров.
Статья 379. Правоотношения, возникающие из договора
1. Из договора может возникнуть обязательственное, вещное, авторское или иное правоотношение.
2. К обязательствам, возникшим из договора, применяются общие положения об обязательствах ( -статьи 268 377 настоящего Кодекса), поскольку иное не предусмотрено правилами настоящей главы и правилами об отдельных видах договоров, содержащимися в настоящем Кодексе.
3. К вещным, авторским или иным правоотношениям, возникающим из договора (договор о совместной деятельности, учредительный договор, авторский договор и другие), применяются положения настоящей главы, если иное не вытекает из законодательства, договора или существа правоотношения.
Статья 380. Свобода договора
1. Граждане и юридические лица свободны в заключении договора. Понуждение к заключению договора не допускается, за исключением случаев, когда обязанность заключать договор предусмотрена настоящим Кодексом, законодательными актами или добровольно принятым обязательством.
2. Стороны могут заключить договор, как предусмотренный, так и не предусмотренный законодательством.
Статья 381. Смешанный договор
Стороны могут заключить договор, в котором содержатся элементы различных договоров, предусмотренных законодательством (смешанный договор ). К отношениям сторон по смешанному договору применяется в соответствующих частях законодательство о договорах, элементы которых содержатся в смешанном договоре, если иное не вытекает из соглашения сторон или существа смешанного договора.
Статья 382. Определение условий договора
1. Условия договора определяются по усмотрению сторон, кроме случаев, когда содержание соответствующего условия предписано законодательством.
В случаях, когда условие договора предусмотрено нормой, которая в соответствии с законодательством действует, если соглашением сторон не установлено иное (диспозитивная норма), стороны могут своим соглашением исключить ее применение либо установить условие, отличное от предусмотренного в ней. При отсутствии такого соглашения условие договора определяется диспозитивной нормой.
2. Если условие договора не определено сторонами или диспозитивной нормой, соответствующие условия определяются обычаями делового оборота, применимыми к отношениям сторон.
Статья 383. Договор и законодательство
1. Договор должен соответствовать обязательным для сторон правилам, установленным законодательством (императивным нормам), действующим в момент его заключения.
2. Если после заключения договора законодательством устанавливаются обязательные для сторон правила, иные, чем те, которые действовали при заключении договора, условия заключенного договора сохраняют силу, кроме случаев, когда законодательством установлено, что его действие распространяется на отношения, возникшие из ранее заключенных договоров.
Статья 384. Возмездный и безвозмездный договор
1. Договор, по которому сторона должна получить плату или иное встречное предоставление за исполнение своих обязанностей, является возмездным.
2. Безвозмездным признается договор, по которому одна сторона обязуется предоставить что-либо другой стороне без получения от нее платы или иного встречного предоставления.
3. Договор предполагается возмездным, если из законодательства, содержания или существа договора не вытекает иное.
Статья 385. Цена
1. Исполнение договора оплачивается по цене, установленной соглашением сторон.
В предусмотренных законодательными актами случаях применяются цены ( тарифы, расценки, ставки и т.п.), устанавливаемые или регулируемые уполномоченными на то государственными органами.
2. Изменение цены после заключения договора допускается в случаях и на условиях, предусмотренных договором, законодательными актами либо в установленном законодательными актами порядке.
3. В случаях, когда в возмездном договоре цена не предусмотрена и не может быть определена исходя из условий договора, считается, что исполнение договора должно быть произведено по цене, которая в момент заключения договора при сравнимых обстоятельствах обычно взималась за аналогичные товары, работы или услуги.
Статья 386. Действие договора
1. Договор вступает в силу и становится обязательным для сторон с момента его заключения (статья 393 настоящего Кодекса).
2. Стороны вправе установить, что условия заключенного ими договора применяются к их отношениям, возникшим до заключения договора.
3. Если законодательством или договором предусмотрен срок действия договора, окончание этого срока влечет прекращение обязательств сторон по договору.
Договор, в котором отсутствует указание на срок его действия, признается действующим до определенного в нем момента окончания исполнения сторонами обязательства.
4. Окончание срока действия договора не освобождает стороны от ответственности за его нарушение, имевшее место до истечения этого срока.
Статья 387. Публичный договор
1. Публичным договором признается договор, заключенный лицом, осуществляющим предпринимательскую деятельность, и устанавливающий его обязанности по продаже товаров, выполнению работ или оказанию услуг, которые такое лицо по характеру своей деятельности должно осуществлять в отношении каждого, кто к нему обратится (розничная торговля, перевозка транспортом общего пользования, услуги связи, энергоснабжение, медицинское, гостиничное обслуживание и тому подобное).
Лицо, осуществляющее предпринимательскую деятельность, не вправе оказывать предпочтение одному лицу перед другим в отношении заключения публичного договора, кроме случаев, предусмотренных законодательными актами Республики Казахстан.
2. Цена товаров, работ и услуг, а также иные условия публичного договора устанавливаются одинаковыми для всех потребителей, за исключением случаев, когда законодательством допускается предоставление льгот для отдельных категорий потребителей.
3. Отказ лица, осуществляющего предпринимательскую деятельность, от заключения публичного договора при наличии возможности предоставить потребителю соответствующие товары (работы, услуги) не допускается.
При необоснованном уклонении лица, осуществляющего предпринимательскую деятельность, от заключения публичного договора применяются положения, предусмотренные пунктом 4 статьи 399 настоящего Кодекса.
4. В случаях, предусмотренных законодательными актами, Правительство Республики Казахстан может издавать правила, обязательные для сторон при заключении и исполнении публичных договоров (типовые договоры, положения и т.п.).
5. Условия публичного договора, не соответствующие требованиям, установленным пунктами 2 и 4 настоящей статьи, ничтожны.
Сноска. Статья 387 с изменениями, внесенными законами РК от 11.07.1997 N 154; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 388. Примерные условия договоров
1. В договоре может быть предусмотрено, что его отдельные условия определяются примерными условиями, разработанными для договоров соответствующего вида и опубликованными в печати.
2. В случаях, когда в договоре не содержится отсылка к примерным условиям , такие примерные условия применяются к отношениям сторон в качестве обычаев делового оборота, если они отвечают требованиям, установленным статьями 3 и 382 настоящего Кодекса.
3. Примерные условия могут быть изложены в форме примерного договора или иного документа, содержащего эти условия.
Статья 389. Договор присоединения
1. Договором присоединения признается договор, условия которого определены одной из сторон в формулярах или иных стандартных формах и могут быть приняты другой стороной не иначе как путем присоединения к предложенному договору в целом.
1-1. Законодательным актом Республики Казахстан о пенсионном обеспечении могут быть предусмотрены особенности заключения договора присоединения и требования к его содержанию.
2. Присоединившаяся к договору сторона вправе потребовать расторжения договора, если договор присоединения, хотя и не противоречит законодательству , но лишает эту сторону прав, обычно предоставляемых по договорам такого вида, исключает или ограничивает ответственность другой стороны за нарушение обязательств либо содержит другие явно обременительные для присоединившейся стороны условия, которые она, исходя из своих разумно понимаемых интересов, не приняла бы при наличии у нее возможности участвовать в определении условий договора.
3. При наличии обстоятельств, предусмотренных в пункте 2 настоящей статьи , требование о расторжении договора, предъявленное стороной, присоединившейся к договору в связи с осуществлением своей предпринимательской деятельности, не подлежит удовлетворению, если присоединившаяся сторона знала или должна была знать, на каких условиях заключает договор.
Сноска. Статья 389 с изменением, внесенным Законом РК от 21.06.2013 № 106-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 390. Предварительный договор
1. По предварительному договору стороны обязуются заключить в будущем договор о передаче имущества, выполнении работ или оказании услуг (основной договор) на условиях, предусмотренных предварительным договором.
2. Предварительный договор заключается в форме, установленной законодательством для основного договора, а если форма основного договора не установлена, то в письменной форме. Несоблюдение правил о форме предварительного договора влечет его ничтожность.
3. Предварительный договор должен содержать условия, позволяющие установить предмет, а также другие существенные условия основного договора.
4. В предварительном договоре указывается срок, в который стороны обязуются заключить основной договор.
Если такой срок в предварительном договоре не определен, предусмотренный им договор подлежит заключению в течение года с момента заключения предварительного договора.
5. В случаях, когда сторона, заключившая предварительный договор, уклоняется от заключения предусмотренного им договора, она обязана возместить другой стороне вызванные этим убытки, если иное не предусмотрено законодательством или договором.
6. Обязательства, предусмотренные предварительным договором, прекращаются, если до окончания срока, в который стороны должны заключить основной договор, он не будет заключен либо одна из сторон не направит другой стороне предложение заключить этот договор.
7. Протокол о намерениях (договор о намерениях), если в нем прямо не предусмотрены намерения сторон придать ему силу предварительного договора, не является гражданско-правовым договором, и неисполнение его не влечет за собой юридических последствий.
Сноска. Статья 390 с изменениями, внесенными законами РК от 02.03.1998 N 211; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 391. Договор в пользу третьего лица
1. Договором в пользу третьего лица признается договор, в котором стороны установили, что должник обязан произвести исполнение не кредитору, a третьему лицу, указанному или не указанному в договоре и имеющему право требовать от должника исполнения обязательства в свою пользу.
2. Если иное не предусмотрено законодательством или договором, с момента выражения третьим лицом должнику намерения воспользоваться своим правом по договору стороны не могут расторгать или изменять заключенный ими договор без согласия третьего лица.
3. Должник в договоре вправе выдвигать против требования третьего лица возражения, которые он мог бы выдвинуть против кредитора.
4. В случае, когда третье лицо отказалось от права, предоставленного ему по договору, кредитор может воспользоваться этим правом, если это не противоречит законодательству и договору.
5. С момента выражения третьим лицом намерения воспользоваться своим правом по договору и до момента отказа третьего лица от своего права кредитор вправе требовать от должника лишь исполнения обязательства в пользу третьего лица в соответствии с условиями договора.
Сноска. Статья 391 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 392. Толкование договора
1. При толковании условий договора судом принимается во внимание буквальное значение содержащихся в нем слов и выражений. Буквальное значение условия договора в случае его неясности устанавливается путем сопоставления с другими условиями и смыслом договора в целом.
2. Если правила, содержащиеся в пункте первом настоящей статьи, не позволяют определить содержание договора, должна быть выяснена действительная общая воля сторон с учетом цели договора. При этом принимаются во внимание все соответствующие обстоятельства, включая предшествующие договору переговоры и переписку, практику, установившуюся во взаимных отношениях сторон, обычаи делового оборота, последующее поведение сторон.
Глава 23. Заключение договора
Статья 393. Существенные условия договора
1. Договор считается заключенным, когда между сторонами, в требуемой в подлежащих случаях форме, достигнуто соглашение по всем существенным его условиям.
Существенными являются условия о предмете договора, условия, которые признаны существенными законодательством или необходимы для договоров данного вида, а также все те условия, относительно которых по заявлению одной из сторон должно быть достигнуто соглашение.
2. Если в соответствии с законодательными актами для заключения договора необходима передача имущества, договор считается заключенным с момента передачи соответствующего имущества.
Статья 394. Форма договора
1. Если стороны условились заключить договор в определенной форме, он считается заключенным с момента придания ему условленной формы, хотя бы по законодательству для данного вида договоров эта форма и не требовалась.
2. Письменная форма договора считается соблюденной, если письменное предложение заключить договор принято в порядке, предусмотренном пунктом 3 статьи 396 настоящего Кодекса.
Статья 395. Оферта
1. Офертой признается предложение о заключении договора, сделанное одному или нескольким конкретным лицам, если оно достаточно определенно и выражает намерение лица, сделавшего предложение, считать себя связанным в случае его принятия (акцепта). Предложение является достаточно определенным, если в нем указаны существенные условия договора или порядок их определения .
2. Оферта связывает направившее ее лицо с момента ее получения адресатом. Если извещение об отзыве оферты поступило ранее или одновременно с
самой офертой, оферта считается не полученной. 3. Полученная адресатом оферта не может быть отозвана в течение срока,
установленного для ее акцепта, если иное не оговорено в самой оферте либо не вытекает из существа предложения или обстановки, в которой оно было сделано.
4. Реклама и иные предложения, адресованные неопределенному кругу лиц, рассматриваются как приглашение делать оферты, если иное прямо не указано в предложении.
5. Содержащее все существенные условия договора предложение, из которого усматривается воля лица, делающего предложение, заключить договор на указанных в предложении условиях с любым, кто отзовется, признается офертой (публичная оферта).
Статья 396. Акцепт
1. Акцептом признается ответ лица, которому адресована оферта, о ее принятии.
Акцепт должен быть полным и безоговорочным. 2. Молчание не является акцептом, если иное не вытекает из
законодательного акта, обычая делового оборота или из прежних деловых отношений сторон.
3. Совершение лицом, получившим оферту, в срок, установленный для ее акцепта, действий по выполнению указанных в ней условий договора (отгрузка товаров, предоставление услуг, выполнение работ, уплата соответствующей суммы и т.д.) считается акцептом, если иное не предусмотрено законодательством или не указано в оферте.
4. Если извещение об отзыве акцепта поступило лицу, направившему оферту, ранее или одновременно с самим акцептом, акцепт считается не полученным.
Статья 397. Порядок заключения договора
1. Когда оферта содержит срок для акцепта, договор считается заключенным, если акцепт получен лицом, направившим оферту, в пределах указанного в ней срока.
2. Когда письменная либо электронная оферта не содержит срока для акцепта, договор считается заключенным, если акцепт получен лицом, направившим оферту, до окончания срока, установленного законодательством, а если такой срок не установлен – в течение необходимого для этого времени.
Когда оферта сделана устно без указания срока для акцепта, договор считается заключенным, если другая сторона немедленно заявила о ее акцепте.
3. В случаях, когда своевременно направленное извещение об акцепте получено с опозданием, акцепт не считается опоздавшим, если сторона, направившая оферту, немедленно не уведомит другую сторону о получении акцепта с опозданием.
Если сторона, направившая оферту, немедленно сообщит другой стороне о принятии ее акцепта, полученного с опозданием, договор считается заключенным.
4. Ответ о согласии заключить договор на иных, чем предложено в оферте, условиях не является акцептом.
Такой ответ признается отказом от оферты и в то же время новой офертой. Сноска. Статья 397 с изменением, внесенным Законом РК от 24.11.2015 №
419-V (вводится в действие с 01.01.2016).
Статья 398. Место заключения договора
Если в договоре не указано место его заключения, договор признается заключенным в месте жительства гражданина или месте нахождения юридического лица, направившего оферту.
Статья 399. Заключение договора в обязательном порядке
1. В случаях, когда в соответствии с настоящим Кодексом или иными законодательными актами заключение договора для одной из сторон обязательно , эта сторона должна направить другой стороне извещение об акцепте, либо об отказе от акцепта, или об акцепте оферты (проекта договора) на иных условиях ( протокол разногласий к проекту договора) в течение тридцати дней со дня получения оферты, если иной срок не установлен законодательством либо не согласован сторонами.
2. Сторона, направившая оферту и получившая от стороны, для которой заключение договора обязательно, извещение об ее акцепте на иных условиях ( протокол разногласий к проекту договора), вправе передать разногласия, возникшие при заключении договора, на рассмотрение суда в течение тридцати дней со дня получения такого извещения либо истечения срока для акцепта, если законодательством об отдельных видах договоров не установлен иной срок.
3. В случаях, если на проект договора, направленный стороной, для которой заключение договора обязательно, в тридцатидневный срок получен протокол разногласий к проекту договора, эта сторона обязана в течение тридцати дней со дня получения протокола разногласий известить другую сторону о принятии договора в ее редакции либо об отклонении протокола разногласий.
При отклонении протокола разногласий либо неполучении извещения о результатах его рассмотрения в указанный срок сторона, направившая протокол разногласий, вправе передать разногласия, возникшие при заключении договора, на рассмотрение суда, если законодательством об отдельных видах договоров не установлено иное.
4. Если сторона, для которой в соответствии с настоящим Кодексом или иными законодательными актами заключение договора обязательно, уклоняется от его заключения, другая сторона вправе обратиться в суд с требованием о понуждении заключить договор.
Сторона, необоснованно уклоняющаяся от заключения договора, должна возместить другой стороне убытки, вызванные отказом заключить договор.
Статья 400. Преддоговорные споры
В случаях, предусмотренных в пунктах 2 и 3 статьи 399 настоящего Кодекса, а также если разногласия, возникшие при заключении договора, были по соглашению сторон переданы на рассмотрение суда, условия договора, по которым у сторон имелись разногласия, определяются в соответствии с решением суда.
Глава 24. Изменение и расторжение договора
Статья 401. Основания изменения и расторжения договора
1. Изменение и расторжение договора возможны по соглашению сторон, если иное не предусмотрено настоящим Кодексом, другими законодательными актами и договором.
2. По требованию одной из сторон договор может быть изменен или расторгнут по решению суда только:
1) при существенном нарушении договора другой стороной; 2) в иных случаях, предусмотренных настоящим Кодексом, другими
законодательными актами или договором. Существенным признается нарушение договора одной из сторон, которое
влечет для другой стороны такой ущерб, что она в значительной степени лишается того, на что была вправе рассчитывать при заключении договора.
3. Договор считается измененным или расторгнутым в случае одностороннего отказа от исполнения договора (отказа от договора соответственно частично или полностью (статья 404 настоящего Кодекса).
Сноска. Пункт 3 статьи 401 в новой редакции - Закон РК от 2 марта 1998 г. N 211.
Статья 402. Порядок изменения и расторжения договора
1. Соглашение об изменении и расторжении договора совершается в той же форме, что и договор, если из законодательства, договора или обычаев делового оборота не вытекает иное.
2. Требование об изменении или расторжении договора может быть заявлено стороной в суд только после получения отказа другой стороны на предложение изменить или расторгнуть договор либо неполучения ответа в срок, указанный в предложении или установленный законодательством либо договором, а при его отсутствии - в тридцатидневный срок.
Статья 403. Последствия расторжения и изменения договора
1. При расторжении договора обязательства сторон прекращаются. 2. При изменении договора обязательства сторон продолжают действовать в
измененном виде. 3. В случае расторжения или изменения договора обязательства считаются
прекращенными или измененными с момента достижения соглашения сторон об изменении или расторжении договора, если иное не вытекает из соглашения
сторон или характера изменения договора, а при расторжении или изменении договора в судебном порядке - с момента вступления в законную силу решения суда о расторжении или изменении договора.
4. Стороны не вправе требовать возвращения того, что было исполнено ими по обязательству до момента расторжения или изменения договора, если иное не установлено законодательными актами или соглашением сторон.
5. Если основанием для расторжения или изменения договора послужило существенное нарушение договора одной из сторон, другая сторона вправе требовать возмещения убытков, причиненных расторжением или изменением договора.
Сноска. В статью 403 внесены изменения - Законом РК от 2 марта 1998 г. N 211.
Статья 404. Односторонний отказ от исполнения договора (отказ от договора)
1. Односторонний отказ от исполнения договора (отказ от договора) допускается в случаях, предусмотренных настоящим Кодексом, иными законодательными актами или соглашением сторон.
2. Одна из сторон вправе отказаться от исполнения договора в случаях: 1) невозможности исполнения обязательства, основанного на договоре (
статья 374 настоящего Кодекса); 2) признания в установленном порядке другой стороны банкротом, если иное
не установлено законодательным актом Республики Казахстан о реабилитации и банкротстве;
3) изменения или отмены акта государственного органа, на основании которого заключен договор.
3. Односторонний отказ от исполнения договора допускается в случаях, когда договор заключен без указания срока,если иное не предусмотрено законодательными актами или соглашением сторон.
4. В случае одностороннего отказа от исполнения договора сторона должна предупредить об этом другую сторону не позднее чем за месяц, если иное не предусмотрено настоящим Кодексом, другими законодательными актами или соглашением сторон.
Сноска. Статья 404 в редакции Закона РК от 02.03.1998 N 211; с изменением, внесенным Законом РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 405. Продление срока действия договора
Стороны вправе продлить действие договора на новый срок. Продление срока действия договора производится по правилам статьи 397
настоящего Кодекса.
© 2012. РГП на ПХВ «Институт законодательства и правовой информации Республики Казахстан» Министерства юстиции Республики Казахстан
Гражданский кодекс Республики Казахстан (Особенная часть)
Архивная версия Кодекс Республики Казахстан от 1 июля 1999 года № 409. ОГЛАВЛЕНИЕ
Сноска. В тексте после слова "Раздел" цифры "IV - VII" заменены соответственно цифрами "4 - 7" Законом РК от 20.12.2004 (вводится в№ 13 действие с 01.01.2005).
Раздел 4 Отдельные виды обязательств Глава 25. Купля-продажа Параграф 1. Общие положения о купле-продаже
Статья 406. Договор купли-продажи
1. По договору купли-продажи одна сторона (продавец) обязуется передать имущество (товар) в собственность, хозяйственное ведение или оперативное управление другой стороне (покупателю), а покупатель обязуется принять это имущество (товар) и уплатить за него определенную денежную сумму (цену).
2. К купле-продаже ценных бумаг и валютных ценностей применяются положения, предусмотренные настоящим параграфом, если законодательными актами не установлены специальные правила их купли-продажи.
2-1. Особенности купли-продажи товаров исламским банком при осуществлении им банковской деятельности устанавливаются законодательными актами Республики Казахстан, регулирующими банковскую деятельность.
3. В случаях, предусмотренных настоящим Кодексом или иными законодательными актами, особенности купли-продажи отдельных видов товаров определяются законодательными и иными нормативными правовыми актами.
4. Положения, предусмотренные настоящим параграфом, применяются к продаже имущественных прав, если иное не вытекает из содержания или характера этих прав.
5. К отдельным видам договоров купли-продажи (розничной купле-продаже, поставке товаров, энергоснабжению, контрактации, продаже предприятия) положения, предусмотренные настоящим параграфом, применяются, если иное не предусмотрено правилами настоящего Кодекса о договорах этих видов.
6. При продаже имущества в порядке, установленном для исполнения судебных решений, в качестве продавца выступает судебный исполнитель.
Сноска. Статья 406 с изменениями, внесенными законами РК от 12.02.2009 № 133-IV (порядок введения в действие см. ст. 2); от 02.04.2010 № 262-IV (вводится в действие с 21.10.2010).
Статья 407. Условие договора о товаре
1. Товаром по договору купли-продажи может быть любая вещь с соблюдением правил настоящего Кодекса.статьи 116
2. Договор может быть заключен на куплю-продажу товара, имеющегося в наличии у продавца в момент заключения договора, а также товара, который будет создан или приобретен продавцом в будущем, если иное не установлено законодательными актами или не вытекает из характера товара.
3. Условие о товаре считается согласованным, если договор позволяет определить наименование и количество товаров (существенные условия).
Статья 408. Обязанности продавца по передаче товара
1. Продавец обязан передать покупателю товар, предусмотренный договором. 2. Если иное не предусмотрено договором, продавец обязан одновременно с
передачей товара передать покупателю его принадлежности, а также относящиеся к нему документы (документы, удостоверяющие комплектность, безопасность, качество товара, порядок эксплуатации и т.п.), предусмотренные нормативными правовыми актами или договором.
Статья 409. Срок исполнения обязанности передать товар
1. Срок исполнения продавцом обязанности передать товар покупателю определяется договором, а если договор не позволяет определить срок - в соответствии с правилами, предусмотренными настоящего Кодекса.статьей 277
2. Договор купли-продажи признается заключенным с условием его исполнения к строго определенному сроку, если из договора ясно вытекает, что при нарушении срока покупатель утрачивает интерес к исполнению договора.
Продавец не вправе исполнять такой договор до наступления или после истечения определенного в нем срока без согласия покупателя.
Законодательными актами или договором могут быть установлены случаи исполнения договора купли-продажи по частям (промежуточные сроки исполнения договора).
Статья 410. Момент исполнения обязанности продавца передать товар
1. Если иное не предусмотрено договором купли-продажи, обязанность продавца передать товар покупателю считается исполненной в момент:
1) вручения товара покупателю или указанному им лицу, если договором предусмотрена обязанность продавца по доставке товара;
2) предоставления товара в распоряжение покупателя, если товар должен быть передан покупателю или указанному им лицу в месте нахождения товара.
Товар считается предоставленным в распоряжение покупателя, когда к сроку, предусмотренному договором, товар готов к передаче в надлежащем месте и покупатель в соответствии с условиями договора осведомлен о готовности товара к передаче. Товар не признается готовым к передаче, если он не идентифицирован для целей договора путем маркировки или иным образом.
2. В случаях, когда из договора купли-продажи не вытекает обязанность продавца по доставке товара или передаче товара в месте его нахождения покупателю, обязанность продавца передать товар покупателю считается исполненной в момент сдачи товара перевозчику или организации связи для доставки покупателю, если договором не предусмотрено иное.
Статья 411. Переход риска случайной гибели товара
1. Если иное не предусмотрено договором купли-продажи, риск случайной гибели или случайного повреждения товара переходит на покупателя с момента, когда в соответствии с законодательными актами или договором продавец считается исполнившим свою обязанность по передаче товара покупателю.
2. Риск случайной гибели или случайного повреждения товара, проданного во время его нахождения в пути, переходит на покупателя с момента заключения договора купли-продажи, если иное не предусмотрено договором или обычаями делового оборота.
Условие договора о том, что риск случайной гибели или случайного повреждения товара переходит на покупателя с момента сдачи товара первому перевозчику, по требованию покупателя может быть признано судом недействительным, если в момент заключения договора продавец знал или должен был знать, что товар утрачен или поврежден, и не сообщил об этом покупателю.
Статья 412. Обязанность продавца по сохранению проданного товара
Когда право собственности, право хозяйственного ведения или оперативного управления переходит к покупателю ранее передачи товара, продавец обязан до передачи сохранять товар, не допуская его ухудшения.
Необходимые для этого издержки покупатель обязан возместить продавцу, если иное не предусмотрено соглашением сторон.
Статья 413. Обязанность продавца передать товар свободным от прав третьих лиц
1. Продавец обязан передать покупателю товар свободным от любых прав третьих лиц, за исключением случая, когда покупатель согласился принять товар, обремененный правами третьих лиц.
Неисполнение продавцом этой обязанности дает покупателю право требовать уменьшения цены товара либо расторжения договора и возмещения убытков, если не будет доказано, что покупатель знал или должен был знать о правах третьих лиц на этот товар.
2. Правила, предусмотренные пунктом 1 настоящей статьи, соответственно применяются и в том случае, когда в отношении товара к моменту его передачи покупателю имелись притязания третьих лиц, о которых продавцу было известно , если эти притязания впоследствии признаны в установленном порядке правомерными.
Статья 414. Ответственность продавца в случае изъятия товара у покупателя
1. При изъятии товара у покупателя третьими лицами по основаниям, возникшим до исполнения договора, продавец обязан возместить покупателю понесенные им убытки, если не докажет, что покупатель знал или должен был знать о наличии этих оснований.
2. Соглашение сторон об освобождении продавца от ответственности или ограничении ответственности в случае истребования приобретенного товара у покупателя третьими лицами ничтожно.
Сноска. Статья 414 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 415. Обязанности покупателя и продавца в случае предъявления иска об изъятии товара
1. Если третье лицо по основанию, возникшему до исполнения договора, предъявит к покупателю иск об изъятии товара, покупатель обязан привлечь продавца к участию в деле, а продавец обязан вступить в это дело на стороне покупателя.
2. Непривлечение покупателем продавца к участию в деле освобождает продавца от ответственности перед покупателем, если продавец докажет, что, приняв участие в деле, он мог бы предотвратить изъятие проданного товара у покупателя.
3. Продавец, привлеченный покупателем к участию в деле, но не принявший в нем участия, лишается права доказывать неправильность ведения дела покупателем.
Статья 416. Последствия неисполнения обязанности передать товар
1. Если продавец отказывается передать покупателю проданный товар, покупатель вправе отказаться от исполнения договора купли-продажи.
2. При отказе продавца передать индивидуально определенную вещь, покупатель вправе предъявить продавцу требования, предусмотренные статьей
настоящего Кодекса.355
Статья 417. Последствия неисполнения обязанности передать принадлежности и документы, относящиеся к товару
1. Если продавец не передает или отказывается передать покупателю относящиеся к товару принадлежности или документы, которые он должен передать (пункт 2 настоящего Кодекса), покупатель вправе назначитьстатьи 408 ему разумный срок для их передачи.
2. В случае, когда принадлежности или документы, относящиеся к товару, не переданы продавцом в указанный срок, покупатель вправе отказаться от принятия товара, если иное не предусмотрено договором.
Статья 418. Количество товара
Количество товара, подлежащего передаче покупателю, предусматривается договором в соответствующих единицах измерения или в денежном выражении. Условие о количестве товаров может быть согласовано путем установления в договоре порядка его определения.
Статья 419. Последствия нарушения условия договора о количестве товара
1. Если продавец передал в нарушение условий договора покупателю меньшее количество товара, чем определено договором, покупатель вправе, если иное не предусмотрено договором, либо потребовать передачи недостающего количества товара, либо отказаться от переданного товара и его оплаты, а если он оплачен, - потребовать возврата уплаченной за него денежной суммы.
2. В случае, когда продавец передал покупателю товар в количестве, превышающем указанное в договоре, покупатель обязан известить об этом продавца в порядке, предусмотренном пунктом 1 настоящего Кодексастатьи 436 . Если в разумный срок после получения сообщения покупателя продавец не распорядится соответствующим товаром, покупатель вправе, поскольку иное не предусмотрено договором, принять весь товар.
3. В случае принятия покупателем товара в количестве, превышающем указанное в договоре, соответствующий товар оплачивается по цене, определенной для товара, принятого в соответствии с договором, если иная цена не определена соглашением сторон.
Статья 420. Ассортимент товаров
Если по договору купли-продажи передаче подлежат товары в определенном соотношении по видам, моделям, размерам, цветам и иным признакам ( ассортимент), продавец обязан передать покупателю товары в ассортименте, согласованном сторонами.
Статья 421. Последствия нарушения условия договора об ассортименте товаров
1. При передаче продавцом предусмотренных договором товаров в ассортименте, не соответствующем договору, покупатель вправе отказаться от их принятия и оплаты, а если они уже оплачены, потребовать возврата уплаченной денежной суммы.
2. Если продавец передал покупателю наряду с товарами, ассортимент которых соответствует договору, товары с нарушением условий договора об ассортименте, покупатель вправе по своему выбору:
1) принять товары, соответствующие условиям договора об ассортименте, и отказаться от остальных товаров;
2) отказаться от всех переданных товаров; 3) потребовать замены товаров, не соответствующих условиям договора об
ассортименте, товарами в ассортименте, предусмотренном договором; 4) принять все переданные товары.
3. При отказе от товаров, ассортимент которых не соответствует условиям договора, или предъявлении требования о замене товаров, не соответствующих условиям договора об ассортименте, покупатель вправе также отказаться от оплаты этих товаров, а если они уже оплачены, потребовать возврата уплаченной суммы.
4. Товары, не соответствующие условиям договора об ассортименте, считаются принятыми, если покупатель в пятнадцатидневный срок после их получения не сообщит продавцу о своем отказе от товаров.
5. Если покупатель не отказался от товаров, ассортимент которых не соответствует договору, он обязан их оплатить по цене, согласованной с продавцом. В случае, когда продавцом не приняты необходимые меры к согласованию цены в пятнадцатидневный срок, покупатель оплачивает товары по цене, которая в момент заключения договора при сравнимых обстоятельствах обычно взималась за аналогичные товары.
6. Правила настоящей статьи применяются, если иное не предусмотрено договором купли-продажи.
Статья 422. Качество товара
1. Продавец обязан передать покупателю товар, качество которого соответствует договору.
2. При отсутствии в договоре условий о качестве товара продавец обязан передать покупателю товар, пригодный для целей, для которых товар такого рода обычно используется.
Если продавец при заключении договора был поставлен покупателем в известность о конкретных целях приобретения товара, продавец обязан передать покупателю товар, пригодный для использования в соответствии с этими целями.
3. При продаже товара по образцу и (или) по описанию продавец обязан передать покупателю товар, который соответствует образцу и (или) описанию.
4. Если в соответствии с установленным законодательными актами порядком предусмотрены обязательные требования к качеству продаваемого товара, то продавец, осуществляющий предпринимательскую деятельность, обязан передать покупателю товар, соответствующий этим обязательным требованиям.
По соглашению между продавцом и покупателем может быть передан товар, соответствующий повышенным требованиям к качеству по сравнению с обязательными требованиями, установленными в порядке, предусмотренном законодательными актами.
5. Товар, который продавец обязан передать покупателю, должен соответствовать требованиям, предусмотренным настоящей статьей, в момент
его передачи покупателю, если иной момент определения соответствия товара этим требованиям не предусмотрен договором, и в пределах разумного срока должен быть пригодным для целей, для которых товар такого рода обычно используется.
Статья 423. Срок годности товара
1. Законодательством, обязательными требованиями национальных стандартов или другими обязательными правилами могут быть определены период времени, по истечении которого товар считается непригодным для использования по назначению (срок годности), а также случаи, когда срок годности товара указывается на товаре.
2. Товары, на которые установлен срок годности, продавец обязан передать покупателю с таким расчетом, чтобы они могли быть использованы по назначению до истечения срока годности.
Сноска. Статья 423 с изменениями, внесенными Законом РК от 10.07.2012 № 31-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 424. Исчисление срока годности товара
Срок годности товара определяется периодом времени, исчисляемым со дня его изготовления, в течение которого товар пригоден к использованию, либо датой, до наступления которой товар годен к использованию.
Статья 425. Гарантия качества товара
1. В случае, когда договором предусмотрено предоставление продавцом гарантии качества товара, продавец обязан передать покупателю товар, который должен соответствовать требованиям, предусмотренным настоящегостатьей 422 Кодекса, в течение определенного периода времени, установленного договором ( гарантийного срока).
2. Гарантия качества товара распространяется и на все составляющие его части (комплектующие изделия), если иное не предусмотрено договором.
Статья 426. Порядок исчисления гарантийного срока
1. Гарантийный срок начинает исчисляться с момента передачи товара покупателю ( настоящего Кодекса), если иное не предусмотреностатья 410 договором.
2. Если покупатель лишен возможности использовать товар, в отношении которого договором установлен гарантийный срок, по обстоятельствам, зависящим от продавца, гарантийный срок не течет до устранения соответствующих обстоятельств продавцом.
Если иное не предусмотрено договором, гарантийный срок продлевается на время, в течение которого товар не мог использоваться из-за обнаруженных в нем недостатков, при условии извещения продавца о недостатках товара в порядке, установленном статьей 436 настоящего Кодекса.
3. Если иное не предусмотрено договором, гарантийный срок на комплектующее изделие считается равным гарантийному сроку на основное изделие и начинает течь одновременно с гарантийным сроком на основное изделие.
4. При замене товара (комплектующего изделия) гарантийный срок начинает течь заново, если иное не предусмотрено договором.
Статья 427. Проверка качества товара
1. Если законодательством или договором предусмотрена проверка качества товара, она должна осуществляться в соответствии с установленными в них требованиями.
В случаях, когда национальными стандартами, иными нормативными документами по стандартизации установлены обязательные требования к проверке качества товаров, проверка качества должна осуществляться в соответствии с содержащимися в них указаниями.
2. Если в порядке, установленном пунктом 1 настоящей статьи, условия проверки качества товара не предусмотрены, то проверка качества товара должна производиться в соответствии с обычаями делового оборота или иными обычно применяемыми условиями проверки товара, подлежащего передаче по договору.
3. Если законодательными актами, обязательными требованиями национальных стандартов, иных нормативных документов по стандартизации или договором предусмотрена обязанность продавца проверить качество товара, передаваемого покупателю (испытание, анализ, осмотр и т.п.), продавец должен представить покупателю по его требованию доказательства осуществления проверки качества товара.
Сноска. Статья 427 с изменениями, внесенными Законом РК от 10.07.2012 № 31-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 428. Последствия передачи товара ненадлежащего качества
1. Если недостатки товара не были оговорены продавцом, покупатель, которому передан товар ненадлежащего качества, вправе по своему выбору потребовать от продавца:
1) соразмерного уменьшения покупной цены; 2) безвозмездного устранения недостатков товара в разумный срок; 3) возмещения своих расходов на устранение недостатков товара;
4) замены товара ненадлежащего качества на товар, соответствующий договору;
5) отказа от исполнения договора и возврата уплаченной за товар денежной суммы.
Условия договора об отказе покупателя от прав, предусмотренных частью первой настоящего пункта, ничтожны.
2. В случае ненадлежащего качества части товаров, входящей в комплект ( настоящего Кодекса), покупатель вправе в отношении этой частистатья 432
товаров осуществить права, предусмотренные в пункте 1 настоящей статьи. 3. В случае, когда продавец товара ненадлежащего качества не является его
изготовителем, требования о замене или о безвозмездном устранении недостатков товара могут быть предъявлены по выбору покупателя к продавцу либо к изготовителю.
4. Правила, предусмотренные настоящей статьей, применяются, если настоящим Кодексом или другими законодательными актами не установлено иное.
Сноска. Статья 428 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 429. Недостатки товара, за которые отвечает продавец
1. Продавец отвечает за недостатки товара, если покупатель докажет, что они возникли до его передачи покупателю или по причинам, возникшим до этого момента.
Продавец отвечает за недостатки проданного товара и тогда, когда он не знал о них. Соглашение об освобождении продавца от ответственности или об ее ограничении ничтожно.
2. В отношении товара, на который продавцом предоставлена гарантия качества, продавец отвечает за недостатки товара, если не докажет, что недостатки в товаре возникли после их передачи покупателю вследствие
нарушения покупателем правил пользования товаром или его хранения либо действий третьих лиц или непреодолимой силы.
Сноска. Статья 429 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 430. Сроки обнаружения недостатков в переданном товаре
1. Если иное не предусмотрено законодательными актами или договором, покупатель вправе предъявить требования, связанные с недостатками товара, при условии, что они обнаружены в сроки, установленные настоящей статьей.
2. Если на товар не установлен гарантийный срок или срок годности, требования, связанные с недостатками товара, могут быть предъявлены покупателем при условии, что недостатки в проданном товаре были обнаружены в разумный срок, но в пределах двух лет со дня передачи товара покупателю, если более длительные сроки не установлены законодательными актами или договором. Срок для выявления недостатков товара, подлежащего перевозке или отправке по почте, исчисляется со дня получения товара в месте его назначения.
3. Если на товар установлен гарантийный срок, покупатель вправе предъявить требования, связанные с недостатками товара, при обнаружении недостатков товара в течение гарантийного срока.
В случае, когда на комплектующие изделия в договоре установлен гарантийный срок меньшей продолжительности, чем на основное изделие, покупатель вправе предъявить требования о недостатках комплектующего изделия при их обнаружении в течение гарантийного срока на основное изделие.
Если на комплектующее изделие в договоре установлен гарантийный срок большей продолжительности, чем гарантийный срок на основное изделие, покупатель вправе предъявить требования о недостатках товара, если недостатки в комплектующем изделии обнаружены в течение гарантийного срока на него, независимо от истечения гарантийного срока на основное изделие.
4. В отношении товара, на который установлен срок годности, покупатель вправе предъявить требования о недостатках товара, если они обнаружены в течение срока годности товара.
5. В случаях, когда предусмотренный договором гарантийный срок составляет менее двух лет и недостатки товара обнаружены покупателем по истечении гарантийного срока, но в пределах двух лет со дня передачи товара покупателю, продавец несет ответственность, если покупатель докажет, что недостатки товара возникли до передачи товара покупателю или по причинам, возникшим до этого момента.
Статья 431. Комплектность товара
1. Продавец обязан передать покупателю товар в комплектности, соответствующей условиям договора.
2. В случае, когда договором не определена комплектность товара, продавец обязан передать покупателю товар, комплектность которого определяется обычаями делового оборота или иными обычно предъявляемыми требованиями.
Сноска. Статья 431 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 432. Комплект товаров
1. Если договором предусмотрена обязанность продавца передать покупателю определенный набор товаров в комплекте (комплект товаров), обязательство считается исполненным с момента передачи всех товаров, включенных в комплект.
2. Если иное не предусмотрено договором и не вытекает из существа обязательства, продавец обязан передать покупателю все товары, входящие в комплект, одновременно.
Статья 433. Последствия передачи некомплектных товаров
1. В случае передачи некомплектного товара (статья 431 настоящего Кодекса) покупатель вправе по своему выбору потребовать от продавца:
1) соразмерного уменьшения покупной цены; 2) доукомплектования товаров в разумный срок; 3) замены некомплектного товара на комплектный; 4) отказа от исполнения договора и возврата уплаченной за товар денежной
суммы. 2. Последствия, предусмотренные пунктом 1 настоящей статьи, применяются
и в случае нарушения продавцом обязанности передать покупателю комплект товаров (статья 432 настоящего Кодекса), если иное не предусмотрено законодательством либо договором или не вытекает из существа обязательства.
Статья 434. Тара и упаковка товара
1. Если иное не предусмотрено договором и не вытекает из существа обязательства или характера товаров, продавец обязан передать покупателю товар в таре и (или) упаковке.
2. Если договором не определены требования к таре и упаковке, то товар должен быть затарен и (или) упакован обычным для такого товара способом, а при отсутствии такового - способом, обеспечивающим сохранность товаров такого рода при обычных условиях хранения и транспортирования.
3. Если в установленном законодательством порядке предусмотрены обязательные требования к таре и (или) упаковке, то продавец, осуществляющий предпринимательскую деятельность, обязан передать покупателю товар в таре и (или) упаковке, отвечающих таким обязательным требованиям.
Статья 435. Последствия передачи товара без тары и (или) упаковки либо в ненадлежащей таре и (или) упаковке
1. В случае, когда подлежащий затариванию и (или) упаковке товар передается покупателю без тары и (или) упаковки либо в ненадлежащей таре и ( или) упаковке, покупатель вправе потребовать от продавца затарить и (или) упаковать товар либо заменить ненадлежащую тару и (или) упаковку, если иное не вытекает из договора, существа обязательства или характера товара.
2. Вместо предъявления продавцу требований, указанных в пункте 1 настоящей статьи, покупатель вправе предъявить к нему иные требования, вытекающие из передачи товара ненадлежащего качества ( настоящегостатья 428 Кодекса).
Статья 436. Извещение продавца о ненадлежащем исполнении договора
1. Покупатель обязан известить продавца о нарушении условий договора о количестве, ассортименте, качестве, комплектности, таре и (или) упаковке товара в срок, предусмотренный законодательными актами, иными нормативными правовыми актами или договором, а если срок не установлен, - в разумный срок после того, как нарушение соответствующего условия договора должно было быть обнаружено, исходя из характера и назначения товаров.
2. В случае невыполнения покупателем обязанности, предусмотренной пунктом 1 настоящей статьи, продавец вправе полностью или частично отказаться от удовлетворения соответствующих требований покупателя, если докажет, что такое несвоевременное извещение повлекло невозможность удовлетворить требования покупателя или влечет для продавца несоразмерные расходы по сравнению с теми, которые он понес бы, если бы своевременно был извещен о нарушении условий договора.
3. Если продавец знал или должен был знать о том, что переданные покупателю товары не соответствуют условиям договора, он не вправе ссылаться
на неисполнение покупателем обязанности, предусмотренной пунктом 1 настоящей статьи.
Статья 437. Обязанность покупателя принять товар
1. Покупатель обязан принять товар, переданный ему продавцом, за исключением случаев, когда в соответствии с правилами настоящей главы он вправе потребовать замены товара или отказаться от исполнения договора.
2. Если иное не предусмотрено законодательными актами или договором, покупатель обязан совершить действия, которые в соответствии с обычно предъявляемыми требованиями необходимы с его стороны для обеспечения передачи и получения соответствующего товара.
3. В случаях, когда покупатель, в нарушение законодательных актов или договора, не принимает или отказывается принять товар, продавец вправе потребовать от покупателя принятия товара или отказаться от исполнения договора.
Статья 438. Цена товара
1. Покупатель обязан оплатить товар по цене, предусмотренной договором, либо, если она договором не предусмотрена и не может быть определена, исходя из его условий, по цене, определяемой в соответствии с правилами статьи 385 настоящего Кодекса, а также совершить за свой счет действия, которые, согласно законодательным актам, договору или обычно предъявляемым требованиям, необходимы для осуществления платежа.
2. Когда цена установлена в зависимости от веса товара, она определяется по весу нетто, если иное не предусмотрено договором.
3. Если договор предусматривает, что цена на товар подлежит изменению в зависимости от показателей, обусловливающих цену товара (себестоимость, затраты и т.п.), но не определен способ пересмотра цены, цена определяется, исходя из соотношения показателей на момент заключения договора и на момент исполнения обязанности по передаче товара. При просрочке продавцом исполнения обязанности по передаче товара цена определяется, исходя из соотношения показателей на момент заключения договора и на день передачи товара, предусмотренный договором, а если такой день договором не предусмотрен, - на день, определенный в соответствии со статьей 277 настоящего Кодекса.
Правила, предусмотренные настоящим пунктом, применяются, если иное не установлено настоящим Кодексом, другими законодательными актами либо не вытекает из существа обязательства.
Статья 439. Оплата товара
1. Если из условий договора и законодательных актов не вытекает обязанность уплатить цену в определенный срок, покупатель обязан уплатить ее без промедления, после передачи ему товара или товарораспорядительных документов на этот товар.
2. Если договором не предусмотрена рассрочка в оплате переданного товара, покупатель обязан уплатить продавцу сумму в размере полной цены переданного товара.
3. Если покупатель не оплачивает переданный в соответствии с договором товар, продавец вправе потребовать оплаты товара и уплаты неустойки за пользование чужими деньгами ( настоящего Кодекса).статья 353
4. Если покупатель, в нарушение договора, отказывается принять и оплатить товар, продавец вправе по своему выбору потребовать оплаты товара либо отказаться от исполнения договора.
5. В случаях, когда продавец в соответствии с договором обязан передать покупателю, кроме неоплаченных, и другие товары, он вправе приостановить передачу этих товаров до полной оплаты всех ранее переданных товаров, если иное не предусмотрено законодательными актами или договором.
Статья 440. Предварительная оплата товара
1. В случаях, когда договором предусмотрена обязанность покупателя уплатить цену полностью или частично до передачи продавцом товара ( предварительная оплата), покупатель должен произвести оплату в срок, предусмотренный договором, а если срок договором не предусмотрен, - в срок, определенный в соответствии со настоящего Кодекса.статьей 277
2. В случае неисполнения покупателем предусмотренной договором обязанности по предварительной оплате товара, применяются правила, предусмотренные настоящего Кодекса.статьей 284
3. В случаях, когда продавец, получивший сумму предварительной оплаты, не исполняет свои обязанности по передаче товара в установленный срок (статья 409 настоящего Кодекса), покупатель вправе потребовать передачи оплаченного товара или возврата суммы предварительной оплаты за товар, не переданный продавцом.
4. В случае, когда продавец не исполняет обязанности по передаче предварительно оплаченного товара и иное не предусмотрено договором купли-продажи, на сумму предварительной оплаты подлежит уплате неустойка в соответствии со настоящего Кодекса со дня, когда по договорустатьей 353
передача товара должна была быть произведена, до дня передачи товара покупателю или возврата ему предварительно уплаченной им суммы. Договором может быть предусмотрена обязанность продавца уплачивать неустойку на сумму предварительной оплаты со дня получения этой суммы.
Статья 441. Оплата товара, проданного в кредит
1. В случаях, когда договором предусмотрена оплата товара через определенное время после его передачи покупателю (продажа товара в кредит), покупатель должен произвести оплату в срок, предусмотренный договором, а если срок договором не предусмотрен, - в срок, определенный в соответствии со
настоящего Кодекса.статьей 277 2. В случае неисполнения продавцом обязанности по передаче товара
применяются правила, предусмотренные настоящего Кодекса.статьей 284 3. В случаях, когда покупатель, получивший товар, не исполняет обязанности
по его оплате в установленный договором срок, продавец вправе потребовать оплаты переданного товара или возврата неоплаченных товаров.
В случаях, когда покупатель не исполняет обязанности по оплате переданного товара в установленный договором срок и иное не предусмотрено настоящим Кодексом и договором, подлежит уплате неустойка на просроченную сумму в соответствии со настоящего Кодекса со дня, когда товарстатьей 353 должен был быть оплачен, до дня оплаты товара покупателем.
4. Договором может быть предусмотрена обязанность покупателя уплачивать неустойку на сумму, соответствующую цене товара, начиная со дня передачи товара продавцом.
5. Продажа товара в кредит производится по цене, действующей на день продажи. Последующее изменение цены на проданный в кредит товар не влечет за собой перерасчета, если иное не предусмотрено законодательными актами или договором.
Статья 442. Рассрочка платежа при продаже товара в кредит
1. Договором о продаже товара в кредит может быть предусмотрена рассрочка платежа.
Договор о продаже товара в кредит с условием о рассрочке платежа считается заключенным, если в нем, наряду с другими существенными условиями договора купли-продажи, указаны цена, порядок, сроки и размеры платежей.
2. Когда покупатель не производит в установленный договором срок очередной платеж за проданный в рассрочку товар, продавец, если иное не предусмотрено договором, вправе отказаться от исполнения договора и
потребовать возврата проданного товара, за исключением случаев, когда сумма платежей, полученных от покупателя, превышает половину цены товара.
Статья 443. Страхование товара
1. Договором купли-продажи может быть предусмотрена обязанность продавца или покупателя страховать товар, если иное не установлено законодательными актами.
2. В случаях, когда сторона, обязанная страховать товар, не осуществляет страхования в соответствии с условиями договора, другая сторона вправе застраховать товар и потребовать от обязанной стороны возмещения расходов на страхование либо отказаться от исполнения договора.
Статья 444. Сохранение права собственности на товар за продавцом
1. В случаях, когда договором предусмотрено, что право собственности на переданный покупателю товар сохраняется за продавцом до оплаты товара или наступления иных обстоятельств, покупатель не вправе до перехода к нему права собственности отчуждать товар или распоряжаться им иным образом, если иное не предусмотрено законодательными актами или договором либо не вытекает из назначения и свойств товара.
2. В случаях, когда в срок, предусмотренный договором, переданный товар не будет оплачен или не наступят иные обстоятельства, при которых право собственности переходит к покупателю, продавец вправе потребовать от покупателя возврата ему товара, если иное не предусмотрено договором.
Параграф 2. Розничная купля-продажа
Статья 445. Договор розничной купли-продажи
По договору розничной купли-продажи продавец, осуществляющий предпринимательскую деятельность по продаже товаров, обязуется передать покупателю товары, обычно предназначаемые для личного, семейного, домашнего или иного использования, не связанного с предпринимательской деятельностью.
Договор розничной купли-продажи является публичным (статья 387 настоящего Кодекса).
Статья 446. Форма договора розничной купли-продажи
Договор розничной купли-продажи считается заключенным в надлежащей форме с момента выдачи продавцом покупателю кассового или товарного чека или иного документа, подтверждающего оплату товара, если иное не установлено законодательными актами или договором розничной купли-продажи , в том числе условиями формуляров или иных стандартных форм, к которым присоединяется покупатель ( настоящего Кодекса). Отсутствие устатья 389 покупателя указанных документов не лишает его возможности ссылаться на свидетельские показания в подтверждение заключения договора и его условий.
Статья 447. Публичная оферта товара
1. Выставление товаров, демонстрация их образцов или представление сведений о продаваемых товарах (описаний, каталогов, фотоснимков и т.п.) в месте их продажи признается публичной офертой, независимо от того, указаны ли цена и другие существенные условия договора купли-продажи, за исключением случаев, когда продавец явно определил, что соответствующие товары не предназначены для продажи.
2. Предложение товара, указанное в его рекламе, каталогах, а также других описаниях товара, обращенных к неопределенному кругу лиц не в месте продажи товара, и не содержащих существенных условий договора купли-продажи, не признается публичной офертой.
Статья 448. Представление покупателю информации о товаре
1. Продавец обязан представить покупателю необходимую и достоверную информацию о товаре, предлагаемом к продаже. Эта информация должна соответствовать требованиям, установленным законодательными актами и обычно предъявляемым в розничной торговле требованиям к содержанию и способам представления такой информации.
2. Покупатель вправе до заключения договора осмотреть товар, потребовать проведения в его присутствии проверки свойств или демонстрации использования товара, если это не исключено ввиду характера товара и не противоречит правилам, принятым в розничной торговле.
3. Продавец, не предоставивший покупателю возможность получения соответствующей информации о товаре, несет ответственность и за те недостатки товара, возникшие после его передачи покупателю, в отношении которых покупатель докажет, что они возникли в связи с отсутствием у него информации.
Статья 449. Договор с условием о принятии покупателем товара в определенный срок
1. Сторонами может быть заключен договор с условием о принятии покупателем товара в определенный договором срок, в течение которого товар не может быть продан другому покупателю.
2. Если иное не предусмотрено договором, неявка покупателя или несовершение иных необходимых действий для принятия товара в определенный договором срок могут рассматриваться продавцом в качестве отказа покупателя от исполнения договора.
3. Дополнительные расходы продавца по обеспечению передачи товара покупателю в определенный договором срок включаются в цену товара, если иное не предусмотрено законодательными актами или договором.
Статья 450. Продажа товаров по образцам
1. Договор розничной купли-продажи может быть заключен на основании ознакомления покупателя с образцом товара (его описанием, каталогом товаров и т.п.), предложенным продавцом.
2. Если иное не предусмотрено законодательными актами или договором, договор считается исполненным с момента доставки товара в место, указанное в договоре, а если место передачи товара договором не определено, - с момента доставки товара покупателю по месту жительства гражданина или месту нахождения юридического лица.
3. Покупатель до передачи товара вправе отказаться от исполнения договора, при условии возмещения продавцу разумных расходов, связанных с совершением действий по исполнению договора.
Статья 451. Продажа товара с использованием автоматов
1. В случаях, когда продажа товара производится с использованием автоматов, владелец автоматов обязан довести до покупателей информацию о товаре (наименование, количество, цена за единицу товара и др.), продавце товара путем помещения на автомате или предоставлении покупателям иным способом сведений о наименовании (фирменном наименовании) продавца, месте его нахождения, режиме работы, а также о действиях, которые необходимо совершить покупателю для получения товара.
2. Договор считается заключенным с момента совершения покупателем действий, необходимых для получения товара.
3. Если покупателю не предоставляется оплаченный товар, продавец обязан обеспечить немедленное предоставление покупателю товара или возврат уплаченной покупателем за этот товар денежной суммы.
Статья 452. Договор с условием о доставке товара покупателю
1. В случаях, когда договор заключен с условием о доставке товара покупателю, продавец обязан в установленный договором срок доставить товар в место, указанное покупателем.
2. Договор считается исполненным продавцом с момента вручения товара покупателю, а при его отсутствии - любому лицу, предъявившему квитанцию или иной документ, свидетельствующий о заключении договора или об оформлении доставки товара, если иное не предусмотрено законодательными актами, договором или не вытекает из существа обязательства.
Статья 453. Цена и оплата товара
1. Покупатель обязан оплатить товар по цене, объявленной продавцом в момент заключения договора, если иное не предусмотрено законодательными актами или не вытекает из существа обязательства.
2. В случаях, когда договором предусмотрена предварительная оплата товара ( настоящего Кодекса), неоплата покупателем товара в установленныйстатья 440 договором срок признается отказом покупателя от исполнения договора, если иное не предусмотрено соглашением сторон.
3. К договорам розничной купли-продажи товаров в кредит, в том числе с условием оплаты покупателем товаров в рассрочку, не подлежат применению правила, предусмотренные частью второй пункта 3 настоящегостатьи 441 Кодекса.
4. Покупатель вправе полностью оплатить товар в любое время, в пределах установленного договором периода рассрочки оплаты товара.
Статья 454. Обмен товара надлежащего качества
1. Покупатель вправе в течение четырнадцати дней с момента передачи ему непродовольственного товара, если более длительный срок не объявлен продавцом, обменять купленный товар в месте покупки или иных местах, объявленных продавцом, на аналогичный товар другого размера, формы, габарита, фасона, расцветки, комплектации и т.п., произведя, в случае разницы в цене, необходимый перерасчет с продавцом.
2. При отсутствии необходимого для обмена товара у продавца покупатель вправе возвратить приобретенный товар продавцу и получить уплаченную за него денежную сумму.
3. Требование покупателя об обмене либо возврате товара подлежит удовлетворению, если товар не был в употреблении, сохранены его потребительские свойства и имеются доказательства приобретения его у данного продавца.
4. Перечень товаров, которые не подлежат обмену или возврату по указанным в настоящей статье основаниям, определяется в порядке, установленном законодательством.
Статья 455. Права покупателя в случае продажи ему товара ненадлежащего качества
1. Покупатель, которому продан товар ненадлежащего качества, если его недостатки не были оговорены продавцом, вправе осуществить действия, предусмотренные в пункте 1 настоящего Кодекса, при этомстатьи 428 покупатель по требованию продавца и за его счет должен возвратить полученный товар ненадлежащего качества.
2. При возврате покупателю уплаченной за товар денежной суммы продавец не вправе удерживать из нее сумму, на которую понизилась стоимость товара из-за полного или частичного использования товара, потери им товарного вида и т.п.
Статья 456. Возмещение разницы в цене при замене товара, уменьшении покупной цены и возврате товара ненадлежащего качества
1. При замене товара ненадлежащего качества на соответствующий договору товар надлежащего качества продавец не вправе требовать возмещения разницы между ценой товара, установленной договором, и ценой товара, существующей в момент замены товара или вынесения судом решения о замене товара.
2. При замене товара ненадлежащего качества на аналогичный, но иной по размеру, фасону, сорту и т.п. товар надлежащего качества, возмещению подлежит разница между ценой заменяемого товара в момент замены и ценой товара, передаваемого взамен товара ненадлежащего качества.
Если требование покупателя не удовлетворено продавцом, эти цены определяются на момент вынесения судом решения о замене товара.
3. В случае предъявления требования о соразмерном уменьшении покупной цены на товар в расчет принимается цена товара на момент предъявления требования об уценке, а если требование покупателя добровольно не
удовлетворено, - на момент вынесения судом решения о соразмерном уменьшении цены.
4. При возврате товара ненадлежащего качества продавцу покупатель вправе потребовать возмещения разницы между ценой товара, установленной договором, и ценой соответствующего товара на момент добровольного удовлетворения требования покупателя, а если требование добровольно не удовлетворено, - на момент вынесения судом решения.
Статья 457. Ответственность продавца и исполнение обязательства в натуре
В случае неисполнения продавцом обязательства по договору розничной купли-продажи возмещение убытков и уплата неустойки не освобождают продавца от исполнения обязательства в натуре.
Параграф 3. Поставка
Статья 458. Договор поставки
По договору поставки продавец (поставщик), являющийся предпринимателем , обязуется передать в обусловленный срок или сроки производимые или закупаемые им товары покупателю для использования в предпринимательской деятельности или в иных целях, не связанных с личным, семейным, домашним и иным подобным использованием.
Статья 459. Урегулирование разногласий при заключении договора поставки
1. В случае, когда при заключении договора поставки между сторонами возникли разногласия по отдельным условиям договора, сторона, предложившая заключить договор и получившая от другой стороны предложение о согласовании этих условий, должна в течение тридцати дней со дня получения этого предложения, если иной срок не согласован сторонами, принять меры по согласованию соответствующих условий договора либо письменно уведомить другую сторону об отказе от его заключения.
2. Сторона, получившая предложения по соответствующим условиям договора, но не принявшая мер по согласованию условий договора поставки и не уведомившая другую сторону об отказе от заключения договора в срок, предусмотренный пунктом 1 настоящей статьи, обязана возместить убытки, вызванные уклонением от согласования условий договора.
Статья 460. Срок действия договора поставки
1. Договор поставки может быть заключен на один год, на срок более одного года (долгосрочный договор) или на иной срок, предусмотренный соглашением сторон.
Если в договоре срок его действия не определен и не вытекает из существа обязательства, договор признается заключенным на один год.
2. Если в долгосрочном договоре количество подлежащего поставке товара или иные условия договора определены на год или на более продолжительный срок, в договоре должен быть установлен порядок согласования сторонами соответствующих условий на последующие периоды до окончания срока действия договора. При отсутствии в договоре порядка согласования договор признается заключенным соответственно на один год или на срок, на который согласованы условия договора.
Статья 461. Периоды поставки
1. Если сторонами предусмотрена поставка товаров в течение срока действия договора отдельными партиями и сроки поставки отдельных партий (периоды поставки) в нем не определены, то товары должны поставляться равномерными партиями помесячно, если иное не вытекает из законодательных актов, обычаев делового оборота или существа обязательства.
2. Наряду с определением периодов поставки в договоре может быть установлен график поставки товаров (декадный, суточный, часовой и т.п.).
3. Досрочная поставка товаров может производиться с согласия покупателя. 4. Товары, поставленные досрочно и принятые покупателем, засчитываются в
счет количества товаров, подлежащих поставке в следующем периоде.
Статья 462. Порядок поставки товаров
1. Поставка товаров осуществляется поставщиком путем отгрузки (передачи) товаров покупателю по договору или лицу, указанному в договоре в качестве получателя.
2. В случаях, когда договором предусмотрено право покупателя давать поставщику указания об отгрузке товаров получателям (отгрузочные разнарядки) , отгрузка (передача) товаров осуществляется поставщиком получателям, указанным в отгрузочной разнарядке.
3. Содержание отгрузочной разнарядки и сроки ее направления покупателем поставщику определяются договором. Если сроки направления отгрузочной
разнарядки договором не предусмотрены, она должна быть направлена поставщику не позднее, чем за тридцать дней до наступления периода поставки.
4. Непредставление покупателем отгрузочной разнарядки в установленный срок дает поставщику право отказаться от исполнения договора, если иное не предусмотрено договором.
Статья 463. Доставка товаров
1. Доставка товаров осуществляется поставщиком путем отгрузки их транспортом, предусмотренным договором, и на определенных договором условиях.
2. Если в договоре не определено, каким видом транспорта или на каких условиях осуществляется доставка, право выбора вида транспорта или определения условий доставки товара принадлежит поставщику, поскольку иное не вытекает из законодательных актов, обычаев делового оборота или существа обязательства.
Статья 464. Восполнение недопоставки товара
1. Поставщик, допустивший недопоставку товара в отдельном периоде поставки, обязан восполнить недопоставленное количество товаров в следующем периоде (периодах) в пределах срока действия договора, если иное не предусмотрено договором.
2. По долгосрочному договору количество товаров, недопоставленное поставщиком в отдельном периоде поставки, подлежит восполнению в следующем периоде (периодах) в пределах того года, в котором допущена недопоставка товаров, если иное не предусмотрено договором.
3. В случае, когда товары отгружаются поставщиком нескольким получателям, указанным в договоре или в отгрузочной разнарядке покупателя, товары, поставленные одному получателю сверх количества, предусмотренного в договоре или отгрузочной разнарядке, не засчитываются в покрытие недопоставки другим получателям и подлежат восполнению поставщиком, если иное не предусмотрено в договоре.
4. Покупатель вправе, уведомив поставщика, отказаться от принятия товара, поставка которого просрочена, если в договоре не предусмотрено иное. Товар, поставленный до получения поставщиком уведомления, покупатель обязан принять и оплатить.
Статья 465. Ассортимент товаров при восполнении недопоставки
1. Ассортимент товаров, недопоставка которых подлежит восполнению, определяется соглашением сторон. При отсутствии соглашения поставщик обязан восполнить недопоставленное количество товара в ассортименте, установленном для периода, в котором допущена недопоставка.
2. Поставка товаров одного наименования в большем количестве, чем предусмотрено договором, не засчитывается в покрытие недопоставки товаров другого наименования, входящих в тот же ассортимент, и подлежит восполнению, кроме случаев, когда поставка произведена с предварительного письменного согласия покупателя.
Статья 466. Принятие товара покупателем
1. Покупатель (получатель) обязан совершить все необходимые действия, обеспечивающие принятие товара, поставленного в соответствии с договором поставки.
2. Принятый покупателем (получателем) товар должен быть им осмотрен в срок, определенный законодательными актами, договором поставки или обычаями делового оборота.
Покупатель (получатель) обязан в этот же срок проверить количество и качество принятого товара в порядке, установленном законодательными актами, договором или обычаями делового оборота, и о выявленных несоответствиях или недостатках товара незамедлительно письменно уведомить поставщика.
3. В случае получения поставленного товара от транспортной организации, покупатель (получатель) обязан проверить соответствие товара сведениям, указанным в транспортных и сопроводительных документах, а также принять этот товар от транспортной организации с соблюдением правил, предусмотренных законодательными и иными нормативными правовыми актами , регулирующими деятельность транспорта.
Статья 467. Ответственное хранение товара, не принятого покупателем
1. Когда покупатель (получатель) в соответствии с законодательными актами или договором поставки отказывается от переданного поставщиком товара, он обязан обеспечить сохранность этого товара (ответственное хранение) и незамедлительно уведомить поставщика.
2. Поставщик обязан вывезти товар, принятый покупателем (получателем) на ответственное хранение, или распорядиться им в разумный срок.
Если поставщик в этот срок не распорядится товаром, покупатель вправе реализовать товар или возвратить его поставщику.
3. Необходимые расходы, понесенные покупателем (получателем) в связи с принятием товара на ответственное хранение, реализацией товара или его возвратом продавцу, подлежат возмещению поставщиком.
При этом вырученная от реализации товара сумма передается поставщику, за вычетом причитающейся покупателю.
4. В случаях, когда покупатель без установленных законодательными актами или договором оснований не принимает товар от поставщика или отказывается от его принятия, поставщик вправе потребовать от покупателя оплаты товара.
Статья 468. Выборка товаров
1. Договором поставки может быть предусмотрено получение товаров покупателем (получателем) в месте нахождения поставщика (выборка товаров).
2. Если срок выборки не предусмотрен договором, выборка товаров покупателем (получателем) должна производиться в разумный срок после получения уведомления поставщика о готовности товаров.
3. Когда договором поставки предусмотрена выборка товаров покупателем ( получателем) в месте нахождения поставщика, покупатель обязан осуществить осмотр передаваемых товаров в месте их передачи, если иное не предусмотрено законодательными актами или не вытекает из существа обязательства.
4. Невыборка покупателем (получателем) товаров в установленный договором поставки срок, а при его отсутствии - в разумный срок после получения уведомления поставщика о готовности товаров, дает поставщику право отказаться от исполнения договора либо потребовать от покупателя оплаты товаров.
Статья 469. Расчеты за поставляемые товары
1. Покупатель оплачивает поставляемые товары с соблюдением порядка и формы расчетов, предусмотренных договором. Если соглашением сторон порядок и форма расчетов не определены, то расчеты осуществляются платежными поручениями.
2. Если в договоре предусмотрена поставка товара отдельными частями, входящими в комплект, то оплата товара покупателем производится после отгрузки (выборки) последней части, входящей в комплект, поскольку иное не установлено договором.
3. Если договором предусмотрено, что оплата товара осуществляется получателем (плательщиком) и последний неосновательно отказался от оплаты либо не произвел оплату товара в установленный договором срок, поставщик вправе потребовать оплаты поставленного товара от покупателя.
Статья 470. Тара и упаковка
1. Если иное не предусмотрено договором, покупатель (получатель) обязан возвратить поставщику многооборотную тару и средства пакетирования, в которых поступил товар, в порядке и сроки, установленные законодательными актами.
2. Прочая тара и упаковка подлежат возврату поставщику лишь в случаях, предусмотренных договором.
Статья 471. Последствия поставки товара ненадлежащего качества
1. Покупатель (получатель), которому поставлен товар ненадлежащего качества, вправе предъявить поставщику требования, предусмотренные статьей
настоящего Кодекса, за исключением случаев, когда поставщик, получивший428 уведомление покупателя о недостатках поставленного товара, без промедления заменит поставленный товар товаром надлежащего качества.
2. Покупатель (получатель), осуществляющий продажу поставленного ему товара в розницу, вправе требовать замены в разумный срок товара ненадлежащего качества, возвращенного потребителем, если иное не предусмотрено договором поставки.
Статья 472. Последствия поставки некомплектных товаров
1. Покупатель (получатель), которому поставлены товары с нарушением условий договора поставки, требований законодательных актов либо обычно предъявляемых требований к комплектности, вправе предъявить поставщику требования, предусмотренные настоящего Кодекса, за исключениемстатьей 433 случая, когда поставщик, получивший уведомление покупателя о некомплектности поставленных товаров, без промедления доукомплектует товары либо заменит их комплектными товарами.
2. Покупатель (получатель), осуществляющий продажу товаров в розницу, вправе требовать замены в разумный срок некомплектных товаров, возвращенных потребителем, комплектными, если иное не предусмотрено договором поставки.
Статья 473. Права покупателя в случае недопоставки товара, невыполнения требований об устранении недостатков товара или о доукомплектовании товара
1. Если поставщик не поставил предусмотренное договором количество товара либо не выполнил требования покупателя о замене товара ненадлежащего качества или о доукомплектовании товаров в установленный срок, покупатель вправе приобрести непоставленные товары у других лиц, с отнесением всех необходимых и разумных расходов по их приобретению на поставщика.
Исчисление расходов покупателя на приобретение товаров у других лиц, в случае их недопоставки поставщиком или невыполнения требований об устранении недостатков товаров либо о доукомплектовании товаров, производится по правилам, предусмотренным пунктом 1 настоящегостатьи 477 Кодекса.
2. Покупатель (получатель) вправе отказаться от оплаты товаров ненадлежащего качества и некомплектных товаров, а если такие товары оплачены, - потребовать возврата уплаченных сумм впредь до устранения недостатков и укомплектования товаров либо их замены.
Статья 474. Неустойка за недопоставку товара или просрочку поставки товара
Установленная законодательными актами или договором неустойка за недопоставку или просрочку поставки товара может взыскиваться со дня, определенного договором, до дня фактического исполнения обязательства, если иной порядок взыскания неустойки не установлен законодательными актами или договором.
Статья 475. Погашение однородных обязательств по нескольким договорам поставки
1. В случаях, когда поставка одноименных товаров осуществляется поставщиком покупателю одновременно по нескольким договорам поставки и количество поставленных товаров недостаточно для погашения обязательств поставщика по всем договорам, поставленные товары должны засчитываться в счет исполнения договора, указанного поставщиком при осуществлении поставки либо без промедления после поставки.
2. Если покупатель оплатил поставщику одноименные товары, полученные по нескольким договорам поставки, и суммы оплаты недостаточно для погашения обязательств покупателя по всем договорам, уплаченная сумма должна засчитываться в счет исполнения договора, указанного покупателем при осуществлении оплаты товаров либо без промедления после оплаты.
3. Если поставщик или покупатель не воспользовались правами, предоставленными им соответственно пунктами 1 и 2 настоящей статьи,
исполнение обязательства засчитывается в погашение обязательств по договору, срок исполнения которого наступил ранее. Если срок исполнения обязательств по нескольким договорам наступил одновременно, предоставленное исполнение засчитывается пропорционально в погашение обязательств по всем договорам.
Статья 476. Односторонний отказ от исполнения договора
1. Односторонний отказ от исполнения договора (полностью или частично) или одностороннее его изменение допускается в случае существенного нарушения договора одной из сторон (часть вторая пункта 2 статьи 401 настоящего Кодекса).
2. Нарушение договора поставщиком предполагается существенным в случаях:
1) поставки товара ненадлежащего качества с недостатками, которые не могут быть устранены в приемлемый для покупателя срок;
2) неоднократного нарушения сроков поставки товара. 3. Нарушение договора покупателем предполагается существенным в случаях
: 1) неоднократного нарушения сроков оплаты товаров; 2) неоднократной невыборки товаров.
4. Соглашением сторон могут быть предусмотрены иные основания одностороннего отказа от исполнения договора или одностороннего его изменения.
5. Договор поставки считается расторгнутым или измененным с момента получения стороной уведомления другой стороны об изменении или одностороннем отказе от исполнения договора, если иной срок расторжения или изменения договора не предусмотрен в уведомлении либо не определен соглашением сторон.
Статья 477. Исчисление убытков при расторжении договора
1. Если в разумный срок после расторжения договора, вследствие нарушения обязательства продавцом, покупатель купил товар взамен предусмотренного договором у другого лица по более высокой, но разумной цене, он может предъявить продавцу требование о возмещении убытков в виде разницы между установленной в договоре ценой и ценой по совершенной взамен сделке.
2. Если в разумный срок после расторжения договора, вследствие нарушения обязательства покупателем, продавец продал товар другому лицу по более
низкой, чем предусмотренная договором, но разумной цене, продавец может предъявить покупателю требование о возмещении убытков в виде разницы между установленной в договоре ценой и ценой по совершенной взамен сделке.
3. Если после расторжения договора по основаниям, предусмотренным пунктами 1 и 2 настоящей статьи, не совершена сделка взамен расторгнутого договора и на данный товар имеется текущая цена, сторона может предъявить требование о возмещении убытков в виде разницы между ценой, установленной в договоре, и текущей ценой на момент расторжения договора.
Текущей ценой признается цена, обычно взимавшаяся при сравнимых обстоятельствах за аналогичный товар в месте, где должна быть осуществлена передача товара. Если в этом месте не существует текущей цены, может быть использована текущая цена, применявшаяся в другом месте, которая может служить разумной заменой, с учетом разницы в расходах по транспортировке товара.
4. Удовлетворение требований, предусмотренных пунктами 1-3 настоящей статьи, не освобождает сторону, не исполнившую обязательства, от возмещения иных убытков, причиненных другой стороне, на основании пункта 4 статьи 9 настоящего Кодекса.
Параграф 4. Контрактация
Статья 478. Договор контрактации
1. По договору контрактации производитель сельскохозяйственной продукции обязуется передать выращенную (произведенную) им сельскохозяйственную продукцию заготовителю - лицу, осуществляющему закупки такой продукции для переработки или продажи.
2. К отношениям по договору контрактации, не урегулированных правилами настоящего параграфа, применяются правила о договоре поставки ( -статьи 458 477 настоящего Кодекса).
Статья 479. Обязанности заготовителя
1. Если иное не предусмотрено договором контрактации, заготовитель обязан принять сельскохозяйственную продукцию у производителя по месту ее нахождения и обеспечить вывоз.
2. В случае, когда принятие сельскохозяйственной продукции осуществляется в месте нахождения заготовителя или ином указанном им месте, заготовитель не
вправе отказаться от принятия сельскохозяйственной продукции, соответствующей условиям договора контрактации и переданной заготовителю в обусловленный договором срок.
Заготовитель обязан обеспечить точное определение качества продукции в соответствии со стандартами.
3. Договором контрактации может быть предусмотрена обязанность заготовителя, осуществляющего переработку сельскохозяйственной продукции, возвращать производителю по его требованию отходы от переработки сельскохозяйственной продукции с оплатой по цене, определенной договором.
Статья 480. Обязанности производителя сельскохозяйственной продукции
Производитель сельскохозяйственной продукции обязан передать заготовителю выращенную (произведенную) сельскохозяйственную продукцию в количестве, качестве и ассортименте, предусмотренных договором контрактации.
Статья 481. Ответственность производителя сельскохозяйственной продукции
Производитель сельскохозяйственной продукции, не исполнивший обязательство либо ненадлежащим образом исполнивший обязательство, несет ответственность при наличии его вины.
Параграф 5. Энергоснабжение
Статья 482. Договор энергоснабжения
1. По договору энергоснабжения энергоснабжающая организация обязуется подавать абоненту (потребителю) через присоединенную сеть энергию, а абонент обязуется оплачивать принятую энергию, а также соблюдать предусмотренный договором режим ее потребления, обеспечивать безопасность эксплуатации находящихся в его ведении энергетических сетей и исправность используемых им приборов и оборудования, связанных с потреблением энергии.
2. Договор энергоснабжения является публичным ( настоящегостатья 387 Кодекса).
3. Условия договора энергоснабжения, обязательные для сторон, определяются в соответствии с настоящим Кодексом и другими законодательными актами.
Статья 483. Заключение и продление договора энергоснабжения
1. Договор энергоснабжения заключается энергоснабжающей организацией с абонентом при наличии у него необходимого оборудования, присоединенного к сетям энергопередающей организации в порядке, установленном законодательством Республики Казахстан.
2. Договор считается заключенным с момента первого фактического подключения абонента в установленном порядке к присоединенной сети.
Если иное не предусмотрено соглашением сторон, такой договор считается заключенным на неопределенный срок и может быть изменен или расторгнут по основаниям, предусмотренным настоящего Кодекса.статьей 490
3. При отсутствии заявления одной из сторон о прекращении или изменении договора энергоснабжения по окончании срока, он считается продленным на тот же срок и на тех же условиях, какие были предусмотрены договором. При продлении договора на новый срок его условия могут быть изменены по соглашению сторон.
4. Если одной из сторон до окончания срока действия договора внесено предложение о заключении нового договора, отношения сторон регулируются ранее заключенным договором до заключения нового договора.
Сноска. Статья 483 с изменениями, внесенными законами РК от 08.01.2003 № 376; от 02.04.2019 № 241-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 484. Количество энергии
1. Энергоснабжающая организация обязана подавать абоненту энергию через присоединенную сеть в количестве, предусмотренном договором, и с соблюдением режима подачи, согласованного сторонами. Количество поданной энергоснабжающей организацией и принятой абонентом энергии определяется в соответствии с данными учета о ее фактическом потреблении.
2. Договором может быть предусмотрено право абонента изменять количество принимаемой им энергии, определенное договором, при условии возмещения им расходов, понесенных энергоснабжающей организацией в связи с обеспечением подачи энергии не в обусловленном договором количестве.
3. В случаях, когда абонентом по договору энергоснабжения выступает гражданин, использующий энергию для бытового потребления, он вправе использовать энергию в необходимом ему количестве. Количество поданной
энергоснабжающей организацией и принятой абонентом энергии определяется показателями приборов учета, а при их отсутствии или временном нарушении - расчетным путем.
Сноска. Статья 484 с изменением, внесенным Законом РК от 06.03.2013 № 81 -V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 485. Последствия нарушения условия договора о количестве энергии
Если энергоснабжающей организацией подано через присоединенную сеть абоненту меньшее количество энергии, чем предусмотрено договором, применяются правила, предусмотренные настоящего Кодекса, еслистатьей 419 иное не предусмотрено законодательными актами, договором или не вытекает из существа обязательства.
Статья 486. Качество энергии
1. Качество подаваемой энергоснабжающей организацией энергии должно соответствовать требованиям, установленным национальными стандартами и иными нормативными документами по стандартизации или предусмотренным договором.
2. В случае нарушения энергоснабжающей организацией требований, предъявляемых к качеству энергии, применяются правила, предусмотренные статьей 491 настоящего Кодекса, если иное не предусмотрено законодательными актами, договором или не вытекает из существа обязательства.
Сноска. Статья 486 с изменениями, внесенными Законом РК от 10.07.2012 № 31-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 487. Обязанности абонента по содержанию и эксплуатации сетей, приборов и оборудования
1. Абонент обязан обеспечивать надлежащее техническое состояние и безопасность эксплуатируемых энергетических сетей, приборов и оборудования, соблюдать установленный режим потребления энергии, а также немедленно
сообщать энергоснабжающей организации об авариях, пожарах, неисправностях приборов учета энергии и иных нарушениях, возникающих при пользовании энергией.
2. В случаях, когда абонентом по договору энергоснабжения выступает гражданин, использующий энергию для бытового потребления, обязанность обеспечивать надлежащее техническое состояние и безопасность энергетических сетей, а также приборов учета потребления энергии возлагается на энергоснабжающую организацию, если иное не установлено законодательными актами.
3. Требования к техническому состоянию и эксплуатации энергетических сетей, приборов и оборудования определяются законодательством.
4. Абонент обязан допускать работников энергоснабжающих организаций к приборам для контроля технического состояния и безопасности эксплуатируемых энергетических сетей, приборов и оборудования. Порядок осуществления контроля за их соблюдением определяется законодательством.
Статья 488. Оплата энергии
1. Оплата энергии производится за фактически принятое абонентом количество энергии, определяемое в соответствии с показателями приборов учета, а при их отсутствии или временном нарушении - расчетным путем, за исключением случаев использования автоматизированной системы коммерческого учета энергии.
2. Порядок расчетов за энергию определяется законодательством или соглашением сторон.
Сноска. Статья 488 с изменением, внесенным Законом РК от 04.07.2012 № 25 -V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 489. Передача абонентом энергии другому лицу
1. Абонент может передавать энергию, принятую им от энергоснабжающей организации через присоединенную сеть, другому лицу (субабоненту) только с согласия энергоснабжающей организации.
2. К договору по передаче абонентом энергии субабоненту применяются правила настоящего параграфа, если иное не предусмотрено законодательными актами или договором.
3. При передаче энергии субабоненту ответственным перед энергоснабжающей организацией остается абонент, если иное не установлено законодательными актами.
Статья 490. Изменение и расторжение договора
1. Перерыв в подаче, прекращение или ограничение подачи энергии допускаются по соглашению сторон, за исключением случая, когда удостоверенное органом государственного энергетического надзора неудовлетворительное состояние энергетических установок абонента угрожает аварией или создает угрозу жизни и безопасности граждан. О перерыве в подаче, прекращении или ограничении подачи энергии энергоснабжающая организация должна заблаговременно предупредить абонента.
2. Перерыв в подаче, прекращение или ограничение подачи энергии без согласования с абонентом и без предупреждения его, но с немедленным его уведомлением допускаются в случае необходимости принять неотложные меры по предотвращению или ликвидации аварии в системе энергоснабжающей организации.
3. Перерыв в подаче, прекращение или ограничение подачи энергии для производств с непрерывным циклом не допускается и регулируется законодательством.
4. В случаях, когда абонентом по договору энергоснабжения выступает гражданин, использующий энергию для бытового потребления, он вправе отказаться от договора в одностороннем порядке при условии уведомления об этом энергоснабжающую организацию и полной оплаты использованной энергии .
5. В случаях, когда абонентом по договору энергоснабжения выступает гражданин, использующий энергию для бытового потребления, энергоснабжающая организация вправе в одностороннем порядке приостановить исполнение договора в связи с неоплатой абонентом использованной им энергии при условии предупреждения абонента не позже чем за месяц до приостановления исполнения договора.
Статья 491. Ответственность по договору энергоснабжения
1. В случаях неисполнения или ненадлежащего исполнения обязательств по договору энергоснабжения, энергоснабжающая организация и абонент обязаны возместить причиненный этим реальный ущерб (пункт 4 настоящегостатьи 9 Кодекса).
2. Если в результате регулирования режима потребления энергии, осуществленного на основании законодательства, допущен перерыв в подаче энергии абоненту, энергоснабжающая организация несет ответственность за неисполнение или ненадлежащее исполнение договорных обязательств при наличии ее вины.
Статья 492. Применение правил договора энергоснабжения к иным отношениям по снабжению через присоединенную сеть
1. К отношениям по снабжению тепловой энергией через присоединенную сеть применяются правила настоящего параграфа, если иное не установлено законодательством.
2. К отношениям по снабжению через присоединенную сеть газом, нефтью и нефтепродукцией, водой и другими товарами применяются правила настоящего параграфа, если иное не установлено законодательством, договором или не вытекает из существа обязательства.
Параграф 6. Продажа предприятия
Статья 493. Договор продажи предприятия
1. По договору продажи предприятия продавец обязуется передать в собственность покупателя предприятие в целом как имущественный комплекс (
настоящего Кодекса), за исключением прав и обязанностей, которыестатья 119 продавец не вправе передавать другим лицам.
2. Права и обязанности по отношению к работникам предприятия переходят от продавца к покупателю предприятия в порядке, предусмотренном трудовым законодательством Республики Казахстан.
3. Права на использование фирменного наименования, товарных знаков, знаков обслуживания и других средств индивидуализации продавца и его продукции, выполняемых им работ или услуг, а также принадлежащие продавцу на основе лицензии права использования средств индивидуализации переходят к покупателю, если иное не предусмотрено договором.
4. Права, полученные на основании специального разрешения (лицензии) на занятие соответствующей деятельностью, не подлежат передаче покупателю предприятия, если иное не установлено законодательными актами. Включение в состав передаваемого по договору предприятия обязательств, исполнение которых покупателем невозможно при отсутствии у него специального
разрешения (лицензии), не освобождает продавца от соответствующих обязательств перед кредиторами. За неисполнение обязательств продавец и покупатель несут перед кредиторами солидарную ответственность.
5. Особенности продажи государственного предприятия, где предприятие выступает в качестве единого имущественного комплекса, определяются законодательным актом Республики Казахстан о государственном имуществе.
Сноска. Статья 493 с изменениями, внесенными законами РК от 15.05.2007 N 253; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 494. Форма договора продажи предприятия
Сноска. Заголовок статьи 494 в редакции Закона РК от 25.03.2011 № (421-IV вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
1. Договор продажи предприятия заключается в письменной форме путем составления одного документа, подписанного сторонами, с обязательным приложением к нему документов, указанных в пункте 2 статьи 495 настоящего Кодекса.
2. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Сноска. Статья 494 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 495. Установление состава и оценка стоимости предприятия, подлежащего продаже
1. Состав и стоимость предприятия, подлежащего продаже, определяются соглашением сторон, если иное не установлено законодательными актами.
2. До подписания договора должны быть составлены и рассмотрены сторонами: акт инвентаризации, бухгалтерский баланс, аудиторский отчет аудиторской организации о составе и стоимости предприятия, а также перечень всех долгов (обязательств), включаемых в состав предприятия, с указанием кредиторов, характера, размера и сроков их требований.
Имущество, права и обязанности, указанные в названных документах, подлежат передаче продавцом покупателю, если иное не вытекает из статьи 493 настоящего Кодекса и не установлено договором.
Сноска. В статью 495 внесены изменения Законом РК от 5 мая 2006 года N 139 (порядок введения в действие см. ст.2 Закона РК N 139).
Статья 496. Права кредиторов при продаже предприятия
1. Кредиторы по обязательствам, включенным в состав продаваемого предприятия, должны быть письменно уведомлены продавцом о продаже предприятия до его передачи покупателю.
2. Кредитор, который письменно не сообщил продавцу о своем согласии на перевод долга, вправе в течение трех месяцев со дня получения уведомления о продаже предприятия потребовать либо прекращения или досрочного исполнения обязательства и возмещения продавцом причиненных этим убытков, либо признания договора продажи предприятия недействительным полностью или в соответствующей части.
3. Кредитор, который не был уведомлен о продаже предприятия в порядке, предусмотренном пунктом 1 настоящей статьи, может предъявить иск об удовлетворении требований, предусмотренных пунктом 2 настоящей статьи, в течение года со дня, когда он узнал или должен был узнать о передаче предприятия продавцом покупателю.
4. После передачи предприятия покупателю продавец и покупатель несут солидарную ответственность по включенным в состав переданного предприятия долгам, которые были переведены на покупателя без согласия кредитора.
Статья 497. Передача предприятия
1. Передача предприятия продавцом покупателю осуществляется по передаточному акту, в котором указываются данные о составе предприятия и об уведомлении кредиторов о продаже предприятия, а также сведения о выявленных недостатках переданного имущества и перечень имущества, обязанности по передаче которого невозможны ввиду его утраты.
2. Подготовка предприятия к передаче, включая составление и представление на подписание передаточного акта, является обязанностью продавца и осуществляется за его счет, если иное не предусмотрено договором.
3. Предприятие считается переданным покупателю со дня подписания передаточного акта обеими сторонами.
С этого момента на покупателя переходит риск случайной гибели или случайной порчи имущества, переданного в составе предприятия.
Статья 498. Переход прав на предприятие
Сноска. Заголовок статьи 498 в редакции Закона РК от 25.03.2011 № (421-IV вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
1. Право на имущество, входящее в состав предприятия, подлежащее государственной регистрации, переходит к покупателю с момента регистрации. Права на остальное имущество переходят с момента подписания передаточного акта обеими сторонами.
2. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
3. В случаях, когда договором предусмотрено сохранение за продавцом права собственности на предприятие, переданное покупателю, до оплаты предприятия или до наступления иных обстоятельств, покупатель вправе до перехода к нему права собственности распоряжаться имуществом и правами, входящими в состав переданного предприятия, в той мере, в какой это необходимо для обеспечения деятельности предприятия как имущественного комплекса.
Сноска. Статья 498 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 499. Последствия передачи и принятия предприятия с недостатками
1. Последствия передачи продавцом и принятия покупателем по передаточному акту предприятия, состав которого не соответствует предусмотренному договором, в том числе в отношении качества переданного имущества, определяются на основании правил, предусмотренных -статьями 413
, , , , настоящего Кодекса, если иное не вытекает из договора и415 419 422 428 432 не предусмотрено пунктами 2-4 настоящей статьи.
2. В случаях, когда предприятие передано и принято по передаточному акту, в котором указаны сведения о выявленных недостатках предприятия и утраченном имуществе (пункт 1 статьи 497 настоящего Кодекса), покупатель
вправе требовать соответствующего уменьшения покупной цены предприятия, если право на предъявление в таких случаях иных требований не предусмотрено договором.
3. Покупатель вправе требовать уменьшения покупной цены в случае передачи ему в составе предприятия долгов (обязательств) продавца, которые не были указаны в договоре или передаточном акте, если продавец не докажет, что покупатель знал о долгах (обязательствах) во время заключения договора и передачи предприятия.
4. Продавец в случае получения уведомления покупателя о недостатках имущества, переданного в составе предприятия, или об отсутствии отдельных видов имущества, подлежащих передаче, должен без промедления заменить имущество ненадлежащего качества или предоставить покупателю недостающее имущество.
5. Покупатель вправе в судебном порядке требовать расторжения или изменения договора продажи предприятия и возвращения того, что исполнено сторонами по договору, если установлено, что предприятие ввиду недостатков, за которые продавец отвечает, непригодно для целей, названных в договоре продажи, и эти недостатки не устранены продавцом на условиях, в порядке и сроки, установленные в соответствии с настоящим Кодексом, законодательными актами или договором, либо устранение недостатков невозможно.
Статья 500. Применение к договору продажи предприятия правил о последствиях недействительности сделок и о расторжении и изменении договора
Правила настоящего Кодекса о последствиях недействительности сделок и о расторжении и изменении договора купли-продажи, предусматривающие возврат или взыскание в натуре полученного по договору с одной или обеих сторон, применяются к договору продажи предприятия, если такие последствия существенно не нарушают права и охраняемые законодательными актами интересы кредиторов продавца и покупателя, других лиц и не противоречат общественным интересам.
Глава 26. Мена
Статья 501. Договор мены
1. По договору мены каждая из сторон обязуется передать в собственность, хозяйственное ведение, оперативное управление другой стороны один товар в обмен на другой.
2. К договору мены применяются соответственно правила о договоре купли-продажи, поскольку это не противоречит правилам настоящей главы и существу мены. При этом каждая из сторон признается продавцом товара, который она обязуется передать, и покупателем товара, который она обязуется принять в обмен.
3. Положения, предусмотренные настоящей главой, применяются к обмену прав (работ, услуг), если иное не предусмотрено законодательными актами и не вытекает из существа соответствующих обязательств.
Статья 502. Цены и расходы по договору мены
1. Если из договора не вытекает иное, товары, подлежащие обмену, предполагаются равноценными, а расходы по их передаче и принятию осуществляются в каждом случае той стороной, которая несет соответствующие обязанности.
2. В случаях, когда в соответствии с договором обмениваемые товары признаются неравноценными, сторона, обязанная передать товар, цена которого ниже цены товара, предоставляемого в обмен, должна оплатить разницу в ценах непосредственно до или после исполнения ее обязанности передать товар, если иной порядок не предусмотрен договором.
Статья 503. Исполнение взаимных обязательств передать товар по договору мены
В случаях, когда в соответствии с договором сроки передачи обмениваемых товаров не совпадают, к исполнению обязательств передать товар стороной, которая должна передать товар после передачи товара другой стороной, применяются правила об исполнении взаимных обязательств (статья 284 настоящего Кодекса).
Статья 504. Переход права собственности на обмениваемые товары
Если законодательными актами или договором не предусмотрено иное, право собственности на обмениваемые товары переходит к сторонам, выступающим по договору мены в качестве покупателей, одновременно после исполнения обязательств передать соответствующие товары каждой из сторон.
Статья 505. Ответственность за изъятие товара, приобретенного по договору мены
Сторона, у которой третьими лицами изъят товар, приобретенный по договору мены, вправе при наличии оснований, предусмотренных статьей 414 настоящего Кодекса, потребовать от другой стороны возврата товара, полученного последней в обмен, а при невозможности получения товара в натуре - его стоимости.
Глава 27. Дарение
Статья 506. Договор дарения
1. По договору дарения одна сторона (даритель) безвозмездно передает или обязуется передать другой стороне (одаряемому) вещь в собственность либо имущественное право (требование) к себе или третьему лицу, либо освобождает или обязуется освободить ее от имущественной обязанности перед третьим лицом.
При наличии встречной передачи вещи или права либо встречного обязательства договор дарения считается ничтожным. К такому договору применяются правила, предусмотренные статьи 160 настоящегопунктом 2 Кодекса.
2. Обещание безвозмездно передать кому-либо вещь или имущественное право либо освободить кого-либо от имущественной обязанности (обещание дарения) признается договором дарения и связывает обещавшего, если обещание сделано в надлежащей форме (пункт 2 статьи 508) и содержит ясно выраженное намерение совершить в будущем безвозмездную передачу вещи или права конкретному лицу либо освободить его от имущественной обязанности.
Обещание подарить все свое имущество или часть всего своего имущества без указания на конкретный предмет дарения в виде вещи, права или освобождения от обязанности ничтожно.
3. Договор, предусматривающий передачу дара одаряемому после смерти дарителя, ничтожен.
К такого рода дарению применяются правила настоящего Кодекса о наследовании.
Сноска. Статья 506 с изменениями, внесенными Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 507. Отказ одаряемого принять дар
1. Одаряемый вправе в любое время до передачи ему дара отказаться от него. В этом случае договор дарения считается расторгнутым.
2. Если договор дарения заключен в письменной форме, отказ от дара должен быть совершен также в письменной форме. В случае, когда договор дарения зарегистрирован, отказ от принятия дара также подлежит государственной регистрации.
3. Если договор дарения был заключен в письменной форме, даритель вправе требовать от одаряемого возмещения реального ущерба, причиненного отказом принять дар.
Сноска. Статья 507 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 508. Форма договора дарения
1. Дарение, сопровождаемое передачей дара одаряемому, может быть совершено устно, за исключением случаев, предусмотренных пунктами 2 и 3 настоящей статьи. Передача дара осуществляется посредством его вручения, символической передачи (вручение ключей и т.п.) либо вручения правоустанавливающих документов.
2. Договор дарения движимого имущества должен быть совершен в письменной форме в случаях, когда:
1) дарителем является юридическое лицо и стоимость дара превышает десять месячных расчетных показателей;
2) договор содержит обещание дарения в будущем. В случаях, предусмотренных в настоящем пункте, договор дарения,
совершенный устно, ничтожен. 3. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по
истечении десяти календарных дней после его первого официального опубликования).
Сноска. Статья 508 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 509. Запрещение дарения
Не допускается дарение, за исключением обычных подарков, стоимость которых не превышает размеров десяти месячных расчетных показателей, установленных законодательными актами:
1) от имени малолетних и граждан, признанных недееспособными, их законными представителями;
2) работникам лечебных, воспитательных учреждений, учреждений социальной защиты и других аналогичных учреждений гражданами, находящимися в них на лечении, содержании или воспитании, супругами и родственниками этих граждан;
3) государственным служащим, а также членам их семей в связи с должностным положением государственных служащих или в связи с исполнением ими служебных обязанностей.
Сноска. Статья 509 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 510. Ограничения дарения
1. Юридическое лицо, которому вещь принадлежит на праве хозяйственного ведения или оперативного управления, вправе подарить ее с согласия собственника, если законодательными актами не предусмотрено иное. Это ограничение не распространяется на обычные подарки, стоимость которых не превышает размеров десяти месячных расчетных показателей, установленных законодательными актами.
2. Дарение имущества, находящегося в общей совместной собственности, допускается по согласию всех участников совместной собственности с соблюдением правил, предусмотренных настоящего Кодекса.статьей 220
3. Дарение принадлежащего дарителю права требования к третьему лицу осуществляется с соблюдением правил, предусмотренных - , ,статьями 339 343 345
настоящего Кодекса.346 4. Дарение посредством исполнения за одаряемого его обязанности перед
третьим лицом осуществляется с соблюдением правил, предусмотренных пунктом 1 настоящего Кодекса.статьи 276
Дарение посредством перевода дарителем на себя долга одаряемого перед третьим лицом осуществляется с соблюдением правил, предусмотренных статьей
настоящего Кодекса.348 5. Доверенность на совершение дарения представителем, в которой не назван
одаряемый и не указан предмет дарения, ничтожна. Сноска. Статья 510 с изменением, внесенным Законом РК от 27.02.2017 № 49
-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 511. Отказ от исполнения договора дарения
1. Даритель вправе отказаться от исполнения договора, содержащего обещание передать в будущем одаряемому вещь или право либо обещание освободить одаряемого от имущественной обязанности, если после заключения договора имущественное или семейное положение либо состояние здоровья дарителя изменилось настолько, что исполнение договора в новых условиях приведет к существенному снижению уровня его жизни.
2. Даритель вправе отказаться от исполнения договора, содержащего обещание передать в будущем одаряемому вещь или право либо обещание освободить одаряемого от имущественной обязанности, по основаниям, дающим ему право отменить дарение (пункт 1 статьи 512 настоящего Кодекса).
3. Отказ дарителя от исполнения договора дарения по основаниям, предусмотренным пунктами 1 и 2 настоящей статьи, не дает одаряемому права требовать возмещения убытков.
Статья 512. Отмена дарения
1. Даритель вправе отменить дарение, если одаряемый совершил покушение на его жизнь, жизнь кого-либо из членов его семьи или близких родственников либо умышленно причинил дарителю телесные повреждения.
В случае умышленного лишения жизни дарителя одаряемым право требовать в суде отмены дарения принадлежит наследникам дарителя.
2. Даритель вправе потребовать в судебном порядке отмены дарения, если обращение одаряемого с подаренной вещью, представляющей для дарителя большую неимущественную ценность, создает угрозу ее безвозвратной утраты.
3. По требованию заинтересованного лица суд может отменить дарение, совершенное индивидуальным предпринимателем или юридическим лицом в нарушение положений законодательного акта Республики Казахстан о реабилитации и банкротстве за счет средств, связанных с его предпринимательской деятельностью, в течение года, предшествовавшего объявлению такого лица банкротом.
4. В договоре дарения может быть обусловлено право дарителя отменить дарение в случае, если он переживет одаряемого.
5. В случае отмены дарения одаряемый обязан возвратить подаренную вещь, если она сохранилась в натуре к моменту поступления уведомления об отмене дарения, либо возместить ее стоимость по рыночным ценам в случае ее отчуждения после поступления уведомления об отмене дарения.
Сноска. Статья 512 с изменениями, внесенными законами РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 513. Случаи, в которых отказ от исполнения договора дарения и отмена дарения невозможны
Правила об отказе от исполнения договора дарения ( настоящегостатья 511 Кодекса) и об отмене дарения ( настоящего Кодекса) не применяются кстатья 512 подаркам, стоимость которых не превышает десяти месячных расчетных показателей, установленных законодательными актами (пункт 1 статьи 510 настоящего Кодекса).
Статья 514. Последствия причинения вреда вследствие недостатков подаренной вещи
Вред, причиненный жизни, здоровью или имуществу одаряемого гражданина вследствие недостатков подаренной вещи, подлежит возмещению дарителем в соответствии с правилами, предусмотренными настоящего Кодекса,главой 47 если доказано, что эти недостатки возникли до передачи вещи одаряемому и не относятся к числу явных, а даритель, хотя и знал о них, не предупредил о них одаряемого.
Статья 515. Правопреемство при обещании дарения
1. Права одаряемого, которому по договору дарения обещан дар, не переходят к его наследникам (правопреемникам), если иное не предусмотрено договором дарения.
2. Обязанности дарителя, обещавшего дарение, переходят к его наследникам ( правопреемникам), если иное не предусмотрено договором дарения.
Статья 516. Пожертвования
1. Пожертвованием признается дарение вещи или права в общеполезных целях.
Пожертвования могут делаться гражданам, лечебным, воспитательным учреждениям, учреждениям социальной защиты и другим аналогичным учреждениям, благотворительным, научным и учебным учреждениям, фондам, музеям и другим учреждениям культуры, общественным и религиозным
объединениям, а также государству и другим субъектам гражданского права, указанным в и настоящего Кодекса.статьях 111 112
2. На принятие пожертвования не требуется чьего-либо разрешения или согласия.
3. Пожертвование имущества гражданину должно быть, а юридическим лицам может быть обусловлено жертвователем использованием этого имущества по определенному назначению. При отсутствии такого условия пожертвование имущества гражданину считается обычным дарением, а в остальных случаях пожертвованное имущество используется одаряемым в соответствии с назначением имущества.
Юридическое лицо, принимающее пожертвование, для использования которого установлено определенное назначение, должно вести обособленный учет всех операций по использованию пожертвованного имущества.
4. Если использование пожертвованного имущества в соответствии с указанным жертвователем назначением становится вследствие изменившихся обстоятельств невозможным, оно может быть использовано по другому назначению лишь с согласия жертвователя, а в случае смерти гражданина- жертвователя или ликвидации юридического лица-жертвователя - по решению суда.
5. Использование пожертвованного имущества не в соответствии с указанным жертвователем назначением или изменение этого назначения с нарушением правил, предусмотренных пунктом 4 настоящей статьи, дает право жертвователю, его наследникам или иному правопреемнику требовать отмены пожертвования.
6. К пожертвованиям не применяются и настоящего Кодекса.статьи 512 515
Глава 28. Рента
Сноска. Заголовок главы 28 в редакции Закона РК от 27.02.2017 (№ 49-VI вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Параграф 1. Общие положения
Статья 517. Договор ренты
1. По договору ренты одна сторона (получатель ренты) передает другой стороне (плательщику ренты) в собственность имущество, а плательщик ренты
обязуется в обмен на полученное имущество периодически выплачивать получателю ренту в виде определенной денежной суммы либо предоставления средств на его содержание в иной форме.
2. По договору ренты допускается установление обязанности выплачивать ренту бессрочно (постоянная рента) или на срок жизни получателя ренты ( пожизненная рента). Пожизненная рента может быть установлена на условиях пожизненного содержания гражданина с иждивением.
Статья 518. Требования к оформлению ренты
Договор ренты подлежит нотариальному удостоверению. Обременение рентой недвижимого имущества подлежит также
государственной регистрации в соответствии с законодательством о государственной регистрации прав на недвижимое имущество.
Несоблюдение указанных требований влечет ничтожность договора ренты. Сноска. Статья 518 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в
действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 519. Отчуждение имущества под выплату ренты
1. Имущество, которое отчуждается под выплату ренты, может быть передано получателем ренты в собственность плательщика ренты за плату или бесплатно.
2. В случаях, когда договором ренты предусматривается передача имущества за плату, к отношениям сторон по передаче и оплате применяются правила о договоре купли-продажи ( настоящего Кодекса), а в случаях, когда такоеглава 25 имущество передается бесплатно - правила о договоре дарения (глава 27 настоящего Кодекса), если иное не установлено правилами настоящей главы и не противоречит существу договора.
Статья 520. Обременение рентой недвижимого имущества
1. Рента обременяет право на земельный участок, а также предприятие, здание, сооружение или другое недвижимое имущество, переданное под ее выплату. В случае отчуждения такого имущества плательщиком ренты его обязательства по договору ренты переходят на приобретателя имущества.
2. Лицо, передавшее обремененное рентой имущество, указанное в пункте 1 настоящей статьи, в собственность другого лица, несет субсидиарную ответственность ( настоящего Кодекса) по требованиям получателястатья 357 ренты, возникшим в связи с нарушением договора ренты, если настоящим
Кодексом, другим законодательным актом или договором не предусмотрена солидарная ответственность по этому обязательству.
Статья 521. Обеспечение выплаты ренты
1. При передаче под выплату ренты права на земельный участок или другого недвижимого имущества получатель ренты в обеспечение обязательства плательщика ренты приобретает право залога на это имущество.
2. Существенным условием договора, предусматривающего передачу под выплату ренты денежной суммы или иного движимого имущества, является условие, устанавливающее обязанность плательщика ренты предоставить обеспечение исполнения его обязательств ( настоящего Кодекса) либостатья 292 застраховать в пользу получателя ренты риск ответственности за неисполнение либо ненадлежащее исполнение этих обязательств.
3. При невыполнении плательщиком ренты обязанностей, предусмотренных пунктом 2 настоящей статьи, а также в случае утраты обеспечения или ухудшения условий обеспечения по обстоятельствам, за которые получатель ренты не отвечает, получатель ренты вправе расторгнуть договор ренты и потребовать возмещения убытков, вызванных расторжением договора.
Статья 521-1. Расторжение договора ренты по требованию получателя ренты
1. В случае существенного нарушения условий договора плательщиком ренты получатель ренты вправе требовать от плательщика ренты выкупа ренты на условиях, предусмотренных настоящего Кодекса, либо расторжениястатьей 528 договора.
Если плательщик ренты совершил покушение на жизнь получателя ренты либо умышленно причинил ему телесные повреждения, получатель ренты вправе требовать расторжения договора и возмещения убытков. В случае умышленного лишения жизни получателя ренты плательщиком ренты право требовать расторжения договора и возмещения убытков принадлежит наследникам получателя ренты.
2. Если под выплату ренты отчуждено бесплатно жилище или иное имущество, получатель ренты вправе при существенном нарушении условий договора плательщиком ренты потребовать возврата этого имущества с зачетом его стоимости в счет выкупной цены ренты.
Сноска. Глава 28 дополнена статьей 521-1 в соответствии с Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 522. Ответственность за просрочку выплаты ренты
За просрочку выплаты ренты плательщик ренты уплачивает получателю ренты неустойку в размере, предусмотренном настоящего Кодекса,статьей 353 если иной размер неустойки не установлен договором.
Параграф 2. Постоянная рента
Статья 523. Получатель постоянной ренты
1. Получателями постоянной ренты могут быть только граждане и некоммерческие организации, если это соответствует целям их деятельности.
2. Права получателя ренты по договору постоянной ренты могут передаваться лицам, указанным в пункте 1 настоящей статьи, путем уступки требования и переходить по наследству либо в порядке правопреемства при реорганизации юридических лиц, если иное не предусмотрено законодательными актами или договором.
Статья 524. Форма и размер постоянной ренты
1. Постоянная рента выплачивается в деньгах в размере, устанавливаемом договором.
2. Договором может быть предусмотрена выплата ренты путем предоставления вещей, выполнения работ или услуг, соответствующих по стоимости денежной сумме ренты.
3. Если иное не предусмотрено договором, размер выплачиваемой ренты изменяется пропорционально изменению месячного расчетного показателя, установленного законодательными актами.
Статья 525. Сроки выплаты постоянной ренты
Если иное не предусмотрено договором, постоянная рента выплачивается по окончании каждого календарного квартала.
Статья 526. Право плательщика на выкуп постоянной ренты
1. Плательщик постоянной ренты вправе отказаться от дальнейшей выплаты ренты путем ее выкупа.
2. Такой отказ действителен при условии, что он заявлен в письменной форме плательщиком ренты не позднее чем за три месяца до прекращения выплаты ренты или за более длительный срок, предусмотренный договором. При этом
обязательство по выплате ренты не прекращается до получения всей суммы выкупа получателем ренты, если иной порядок выкупа не предусмотрен договором.
3. Условие договора об отказе плательщика постоянной ренты от права на ее выкуп ничтожно.
Сноска. Статья 526 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 527. Выкуп постоянной ренты по требованию получателя ренты
Получатель ренты вправе требовать выкупа ренты плательщиком в случаях, когда:
1) плательщик ренты просрочил ее выплату более чем на один год, если иное не установлено договором;
2) плательщик ренты нарушил свои обязательства по обеспечению выплаты ренты ( настоящего Кодекса);статья 521
3) плательщик ренты признан неплатежеспособным либо возникли иные обстоятельства, очевидно свидетельствующие, что рента не будет выплачиваться им в размере и сроки, установленные договором;
4) недвижимое имущество, переданное под выплату ренты, поступило в общую собственность или разделено между несколькими лицами;
5) в других случаях, предусмотренных договором.
Статья 528. Выкупная цена постоянной ренты
1. Выкуп постоянной ренты в случаях, предусмотренных истатьями 526 527 настоящего Кодекса, производится по цене, установленной договором.
2. При отсутствии условия о выкупной цене в договоре, по которому имущество передано за плату под выплату ренты, выкуп осуществляется по цене, соответствующей годовой сумме рентных платежей.
3. При отсутствии условия о выкупной цене в договоре, по которому имущество передано бесплатно под выплату ренты, в выкупную цену наряду с годовой суммой рентных платежей включается цена переданного имущества.
Статья 529. Риск случайной гибели или случайного повреждения имущества, переданного под выплату постоянной ренты
1. Риск случайной гибели или случайного повреждения имущества, переданного бесплатно под выплату постоянной ренты, несет плательщик ренты.
2. При случайной гибели или случайной порче имущества, переданного за плату под выплату постоянной ренты, плательщик вправе требовать соответственно прекращения обязательства по выплате ренты либо изменения условий ее выплаты.
Параграф 3. Пожизненная рента
Статья 530. Получатели пожизненной ренты
1. Пожизненная рента может быть установлена на период жизни гражданина, передающего имущество под выплату ренты, либо на период жизни другого указанного им гражданина.
2. Допускается установление пожизненной ренты в пользу нескольких граждан, доли которых в праве на получение ренты предполагаются равными, если иное не установлено договором.
В случае смерти одного из получателей ренты его доля в праве на получение ренты переходит к пережившим его получателям ренты, если договором не предусмотрено иное, а в случае смерти последнего получателя ренты обязательство выплаты ренты прекращается.
3. Договор, устанавливающий пожизненную ренту в пользу гражданина, который умер к моменту заключения договора, ничтожен.
Сноска. Статья 530 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 531. Размер пожизненной ренты
1. Пожизненная рента определяется в договоре как денежная сумма, периодически выплачиваемая получателю ренты в течение его жизни. В случаях, когда сторонами заключен договор о пожизненном содержании с иждивением, в договоре должна быть определена денежная оценка такого содержания.
2. Если иное не предусмотрено договором пожизненной ренты, размер выплачиваемой ренты в расчете на месяц должен быть не менее минимальной заработной платы, установленной законодательными актами.
Статья 532. Сроки выплаты пожизненной ренты
Если иное не предусмотрено договором, пожизненная рента выплачивается по окончании каждого календарного месяца.
Статья 533. Расторжение договора пожизненной ренты по требованию получателя ренты
Сноска. Статья 533 исключена Законом РК от 27.02.2017 (вводится в№ 49-VI действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 534. Риск случайной гибели имущества, переданного под выплату ренты
Случайная гибель или случайная порча имущества, переданного под выплату пожизненной ренты, не освобождает плательщика ренты от обязательства выплачивать ее на условиях, предусмотренных договором.
Параграф 4. Пожизненное содержание с иждивением
Статья 535. Договор пожизненного содержания с иждивением
1. По договору пожизненного содержания с иждивением получатель ренты - гражданин передает принадлежащее ему недвижимое имущество в собственность плательщика ренты, который обязуется осуществлять пожизненное содержание с иждивением этого гражданина и (или) указанного им третьего лица.
2. К договору пожизненного содержания с иждивением применяются правила о пожизненной ренте, если иное не предусмотрено правилами настоящего параграфа.
Статья 536. Обязанность по предоставлению содержания с иждивением
1. Обязанность плательщика ренты по предоставлению содержания с иждивением может включать обеспечение потребностей в жилище, в питании и одежде, уходе и необходимой помощи.
Договором может быть также предусмотрена оплата плательщиком ренты ритуальных услуг.
2. В договоре должна быть определена стоимость общего объема содержания с иждивением. При этом общий объем содержания в месяц не может быть менее двух размеров минимальной заработной платы, установленной законодательными актами.
3. При разрешении возникшего между сторонами спора об объеме содержания, которое предоставляется или должно предоставляться гражданину, суд должен руководствоваться принципами добросовестности и разумности.
Статья 537. Замена пожизненного содержания на периодические платежи
Договором может быть предусмотрена возможность замены предоставления содержания с иждивением в натуре выплатой периодических платежей в деньгах.
Статья 538. Отчуждение и использование имущества, переданного для обеспечения пожизненного содержания
1. Плательщик ренты вправе отчуждать, сдавать в залог или иным способом обременять недвижимое имущество, переданное ему в обеспечение пожизненного содержания, только при наличии предварительного согласия получателя ренты.
2. Плательщик ренты обязан принимать необходимые меры для того, чтобы в период предоставления пожизненного содержания с иждивением использование указанного имущества не приводило к снижению стоимости этого имущества сверх стоимости его естественного износа.
Статья 539. Прекращение пожизненного содержания с иждивением
1. Обязательство пожизненного содержания с иждивением прекращается со смертью получателя ренты.
2. При существенном нарушении плательщиком ренты своих обязательств получатель ренты вправе потребовать возврата недвижимого имущества, переданного в обеспечение пожизненного содержания, либо выплаты ему выкупной цены на условиях, установленных настоящего Кодекса.статьей 528 При этом плательщик ренты не вправе требовать компенсации расходов, понесенных в связи с содержанием получателя ренты.
Глава 29. Имущественный наем (аренда) Параграф 1. Общие положения
Статья 540. Договор имущественного найма
1. По договору имущественного найма (аренды) наймодатель обязуется предоставить нанимателю имущество за плату во временное владение и пользование.
2. В случаях и порядке, установленных настоящим Кодексом, наниматель вправе распоряжаться нанятым имуществом.
3. К договорам имущественного найма также относятся договоры лизинга, проката, а также иные виды договоров, связанные с передачей имущества за плату во временное пользование.
Статья 541. Объекты имущественного найма
1. В имущественный наем могут быть переданы предприятия и другие имущественные комплексы, земельные участки, здания, сооружения, оборудование, транспортные средства и другие вещи, которые не теряют своих натуральных свойств в процессе их использования (непотребляемые вещи).
2. Объектом имущественного найма может быть также право землепользования, право недропользования и другие вещные права, если иное не предусмотрено законодательными актами.
3. Законодательными актами могут быть установлены виды имущества, сдача которых в имущественный наем не допускается или ограничивается.
4. Законодательными актами Республики Казахстан могут быть установлены особенности сдачи в имущественный наем жилых помещений, земельных участков, участков недр и других обособленных природных объектов.
5. Особенности сдачи в имущественный наем государственного имущества устанавливаются законодательным актом Республики Казахстан о государственном имуществе.
6. Особенности сдачи в имущественный наем государственного имущества на основании договора государственно-частного партнерства, в том числе договора концессии, устанавливаются законодательными актами Республики Казахстан о государственно-частном партнерстве и о концессиях.
Сноска. Статья 541 с изменениями, внесенными законами РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования); от 04.07.2013 № 131-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 31.10.2015 № 380-V ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 542. Условия договора имущественного найма
В договоре имущественного найма должны быть указаны данные, позволяющие установить имущество, подлежащее передаче нанимателю в качестве объекта имущественного найма.
При отсутствии этих данных в договоре условие об объекте, подлежащем передаче в имущественный наем, считается несогласованным сторонами, а соответствующий договор - незаключенным.
Статья 543. Наймодатель
Право сдачи имущества внаем принадлежит его собственнику. Наймодателями могут быть также лица, уполномоченные законодательными
актами или собственником сдавать имущество внаем.
Статья 544. Форма договора имущественного найма
1. Договор имущественного найма на срок более одного года, а если хотя бы одной из сторон договора является юридическое лицо, независимо от срока, должен быть заключен в письменной форме.
2. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
3. Договор имущественного найма между гражданами на срок до одного года включительно может быть заключен в устной форме.
4. Договор имущественного найма, предусматривающий переход в последующем права собственности на имущество к нанимателю, заключается в форме, предусмотренной для договора купли-продажи такого имущества.
Сноска. Статья 544 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 545. Срок договора имущественного найма
1. Договор имущественного найма заключается на срок, определенный договором.
2. Если договор имущественного найма заключен без указания срока, он считается заключенным на неопределенный срок.
Каждая из сторон вправе отказаться от такого договора в любое время, предупредив об этом другую сторону за три месяца - при найме недвижимого имущества и за один месяц - при найме иного имущества, если законодательными актами или договором не установлено иное.
3. Законодательными актами могут устанавливаться максимальные ( предельные) сроки договора для отдельных видов имущественного найма, а
также для найма отдельных видов имущества. В этих случаях, если срок найма в договоре не определен и ни одна из сторон не отказалась от договора до истечения предельного срока, установленного законодательными актами, договор по истечении предельного срока прекращается.
В этом случае договор найма имущества, превышающий установленный законодательными актами предельный срок, считается заключенным на срок, равный максимальному (предельному).
Статья 546. Плата по договору имущественного найма
1. Плата за пользование нанятым имуществом уплачивается нанимателем в порядке, сроки и в форме, установленные договором, если законодательными актами не установлено иное. В случаях, когда договором они не определены, считается, что установлены порядок, сроки и форма, обычно применяемые при найме аналогичного имущества при сравнимых обстоятельствах.
2. Плата устанавливается за все нанятое имущество в целом или отдельно по каждой из его составных частей в виде:
1) определенных в твердой сумме платежей, вносимых периодически или единовременно;
2) установленной доли, полученной в результате использования нанятого имущества, продукции, плодов или доходов;
3) предоставления нанимателем определенных услуг; 4) передачи нанимателем наймодателю обусловленной договором вещи в
собственность или внаем; 5) возложения на нанимателя обусловленных договором затрат по
улучшению нанятого имущества. Стороны могут предусматривать в договоре сочетание указанных форм платы
за пользование имуществом или иные формы платы. 3. Размеры платы за пользование имуществом могут изменяться не чаще
одного раза в год, если иное не предусмотрено соглашением сторон. Законодательными актами могут быть предусмотрены иные минимальные сроки для пересмотра размера платы для отдельных видов имущественного найма, а также для найма отдельных видов имущества.
4. Размеры платы могут быть пересмотрены по требованию одной из сторон в случаях изменения устанавливаемых централизованно цен и тарифов.
5. Наниматель вправе потребовать соответственного уменьшения платы, если в силу обстоятельств, за которые он не отвечает, условия пользования, предусмотренные договором, или состояние имущества существенно ухудшились, если законодательными актами не предусмотрено иное.
6. Если иное не предусмотрено договором, в случае существенного нарушения нанимателем сроков внесения платы за пользование имуществом, наймодатель вправе потребовать от него досрочного внесения платы в установленный наймодателем срок. При этом наймодатель не вправе требовать досрочного внесения платы более чем за два срока подряд.
Статья 547. Предоставление имущества нанимателю
1. Наймодатель обязан предоставить нанимателю имущество в состоянии, соответствующем условиям договора и назначению имущества.
2. Имущество сдается внаем вместе со всеми его принадлежностями и относящимися к нему документами (документами, удостоверяющими комплектность, безопасность, качество имущества, порядок эксплуатации и т.п.), если иное не предусмотрено договором.
Если такие принадлежности и документы переданы не были, однако без них наниматель не может пользоваться имуществом в соответствии с его назначением либо в значительной степени лишается того, на что был вправе рассчитывать при заключении договора, он может потребовать предоставления ему наймодателем таких принадлежностей и документов или расторжения договора.
3. Если наймодатель не предоставил нанимателю сданное внаем имущество в указанный в договоре срок, а если в договоре такой срок не указан, - в разумный срок, наниматель вправе истребовать от него это имущество в соответствии со
настоящего Кодекса либо потребовать расторжения договора.статьей 355
Статья 548. Ответственность наймодателя за недостатки сданного внаем имущества
1. Наймодатель отвечает за недостатки сданного внаем имущества, полностью или частично препятствующие пользованию им, даже если во время заключения договора он не знал об этих недостатках.
При обнаружении таких недостатков наниматель вправе по своему выбору потребовать от наймодателя:
1) безвозмездно устранить недостатки имущества; 2) соразмерно уменьшить наемную плату;
3) удержать сумму понесенных им расходов по устранению данных недостатков из платы за пользование имуществом, предварительно уведомив об этом наймодателя;
4) досрочного расторжения договора.
2. Наймодатель, извещенный о требованиях нанимателя или о его намерении устранить недостатки имущества за счет наймодателя, может без промедления произвести замену предоставленного внаем имущества с согласия нанимателя другим аналогичным имуществом, находящимся в надлежащем состоянии либо безвозмездно устранить недостатки имущества.
3. Если удовлетворение требований нанимателя или удержание им расходов по устранению недостатков из платы за пользование имуществом не покрывает причиненных нанимателю убытков, он вправе потребовать возмещения непокрытой части убытков.
4. Наймодатель не отвечает за те недостатки сданного внаем имущества, которые были им оговорены при заключении договора или были заранее известны нанимателю.
Статья 549. Права третьих лиц на сдаваемое внаем имущество
1. Передача имущества внаем не является основанием для прекращения или изменения прав третьих лиц на это имущество.
2. При заключении договора наймодатель обязан предупредить нанимателя о всех правах третьих лиц на сдаваемое внаем имущество (сервитуте, праве залога и т.п.).
Неисполнение этого правила дает нанимателю право требовать уменьшения платы за пользование имуществом либо расторжения договора.
Статья 550. Пользование нанятым имуществом
Наниматель обязан пользоваться имуществом в соответствии с условиями договора, а если такие условия в договоре не определены, - в соответствии с назначением имущества.
Статья 551. Пределы распоряжения нанимателем нанятым имуществом
1. Наниматель вправе с согласия наймодателя сдавать нанятое имущество в поднаем (субаренду), передавать свои права и обязанности по договору имущественного найма другому лицу (перенаем), предоставлять нанятое имущество в безвозмездное пользование, а также отдавать эти права в залог и вносить их в качестве вклада в уставный капитал хозяйственных товариществ, акционерных обществ или взноса в производственный кооператив, если иное не установлено законодательными актами. В указанных случаях, за исключением перенайма, ответственным по договору перед наймодателем остается наниматель .
2. Договор о передаче имущества другим лицам не может быть заключен на срок, превышающий срок договора найма.
3. К договору поднайма применяются правила о договоре имущественного найма, если иное не установлено законодательными актами.
Статья 552. Обязанности наймодателя по содержанию сданного внаем имущества
1. Наймодатель обязан производить за свой счет капитальный ремонт переданного внаем имущества в согласованные сторонами сроки, если иное не предусмотрено законодательными актами или договором.
2. Наймодатель обязан производить за свой счет ремонт, вызываемый неотложной необходимостью, возникшей в силу обстоятельств, за которые наниматель не отвечает, в разумные сроки, если иное не установлено законодательными актами или договором.
3. Неисполнение наймодателем обязанностей по капитальному ремонту дает нанимателю право по своему выбору:
1) произвести ремонт самостоятельно и взыскать с наймодателя стоимость ремонта; 2) зачесть стоимость ремонта в счет платы по договору; 3) потребовать соответствующего уменьшения платы по договору; 4) отказаться от договора.
Статья 553. Обязанности нанимателя по содержанию нанятого имущества
Наниматель обязан поддерживать имущество в исправном состоянии, производить за свой счет текущий ремонт и нести расходы по содержанию имущества, если иное не установлено законодательством или договором.
Статья 554. Право собственности нанимателя на продукцию, плоды и иные доходы от нанятого имущества
Продукция, плоды и иные доходы, полученные нанимателем в результате использования нанятого имущества, являются его собственностью, если иное не предусмотрено законодательными актами или договором.
Статья 555. Улучшения имущества
1. Отделимые улучшения нанятого имущества, произведенные нанимателем, являются его собственностью, если иное не предусмотрено договором.
2. В случае, когда наниматель произвел за счет собственных средств и с согласия наймодателя улучшения, неотделимые без вреда для нанятого имущества, он имеет право после прекращения договора на возмещение стоимости этих улучшений, поскольку иное не предусмотрено договором.
3. Стоимость неотделимых улучшений, произведенных нанимателем без согласия наймодателя, возмещению не подлежит, если иное не предусмотрено законодательными актами или договором.
Статья 556. Изменение и расторжение договора имущественного найма по требованию одной из сторон
1. По требованию одной из сторон договор имущественного найма может быть изменен или расторгнут досрочно в судебном порядке в случаях, предусмотренных настоящим Кодексом, иными законодательными актами или договором.
2. По требованию наймодателя договор имущественного найма может быть расторгнут и имущество возвращено наймодателю в следующих случаях:
1) если наниматель пользуется имуществом с существенным нарушением условий договора или назначения имущества, несмотря на письменное предупреждение наймодателя о прекращении таких действий;
2) если наниматель умышленно или по неосторожности существенно ухудшает имущество;
3) если наниматель более двух раз по истечении установленного договором срока платежа не вносит плату за пользование имуществом;
4) если наниматель не производит капитального ремонта имущества в установленные договором найма сроки, а при отсутствии их в договоре - в разумные сроки в тех случаях, когда в соответствии с законодательными актами или договором обязанность капитального ремонта лежит на нанимателе.
Наймодатель вправе требовать досрочного расторжения договора только после предоставления нанимателю возможности исполнения своего обязательства в разумный срок.
3. Договор может быть досрочно расторгнут по требованию нанимателя в следующих случаях:
1) наймодатель не предоставляет имущество в пользование нанимателю либо создает препятствия пользованию имуществом в соответствии с условиями договора или назначением имущества;
2) наймодатель не производит в установленные договором сроки, а при отсутствии их в договоре - в разумные сроки возложенной на него обязанности капитального ремонта имущества;
3) переданное нанимателю имущество имеет недостатки, препятствующие его использованию, которые не были оговорены наймодателем при заключении договора, не были заранее известны нанимателю и не могли быть обнаружены им во время осмотра имущества или проверки его исправности при заключении договора;
4) если имущество в силу обстоятельств, за которые наниматель не отвечает, окажется в состоянии, не пригодном для пользования.
Статья 557. Преимущественное право нанимателя на заключение договора на новый срок
1. Наниматель, надлежащим образом исполнявший свои обязанности, имеет, если иное не предусмотрено законодательными актами или договором, по истечении срока договора при прочих равных условиях преимущественное перед другими лицами право на заключение договора имущественного найма на новый срок. Наниматель обязан письменно уведомить наймодателя о желании заключить такой договор в срок, указанный в договоре имущественного найма, а если в договоре такой срок не указан, то в разумный срок до окончания действия договора.
2. При заключении договора имущественного найма на новый срок условия договора могут быть изменены по соглашению сторон.
3. Если наймодатель отказал нанимателю в заключении договора на новый срок, но в течение года со дня истечения срока договора заключил договор имущественного найма с другим лицом, наниматель вправе по своему выбору потребовать в суде перевода на себя прав и обязанностей по заключенному договору и возмещения убытков, причиненных отказом возобновить с ним договор, либо только возмещения убытков.
Статья 558. Возобновление договора имущественного найма
Если наниматель продолжает пользоваться имуществом после истечения срока договора при отсутствии возражений со стороны наймодателя, договор считается возобновленным на тех же условиях на неопределенный срок. При этом каждая из сторон вправе в любое время отказаться от договора, предупредив письменно об этом другую сторону не менее чем за три месяца - при найме недвижимости и за один месяц - при найме иного имущества, если законодательными актами или договором не предусмотрено иное.
Статья 559. Сохранение договора имущественного найма в силе при изменении сторон
1. Переход права собственности, права хозяйственного ведения или права оперативного управления на сданное внаем имущество к другому лицу не является основанием для изменения или расторжения договора имущественного найма.
2. В случае смерти гражданина, являющегося нанимателем недвижимого имущества, его права и обязанности по договору найма этого имущества переходят к наследнику, если законодательными актами или договором не предусмотрено иное.
Наймодатель не вправе отказать такому наследнику во вступлении в договор на оставшийся срок его действия, за исключением случаев, когда заключение договора было обусловлено личными качествами нанимателя.
Статья 560. Зависимость договора поднайма от основного договора имущественного найма
1. Если иное не предусмотрено договором имущественного найма, досрочное прекращение договора имущественного найма влечет прекращение заключенного в соответствии с ним договора поднайма.
2. Если договор имущественного найма по основаниям, предусмотренным настоящим Кодексом, является недействительным, то заключенный в соответствии с ним договор поднайма является ничтожным.
Сноска. Статья 560 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 561. Возврат имущества наймодателю при прекращении договора
1. После прекращения договора имущественного найма наниматель обязан вернуть наймодателю имущество в том состоянии, в каком его получил, с учетом нормального износа или в состоянии, обусловленном договором.
2. Если состояние возвращаемого имущества по окончании договора не соответствует условиям, предусмотренным в пункте 1 настоящей статьи, наниматель возмещает наймодателю причиненный ущерб. Если имущество, сданное внаем, выбывает из строя раньше срока службы, предусмотренного в договоре, то наниматель возмещает наймодателю остаточную стоимость имущества, если иное не предусмотрено договором.
3. Если наниматель не возвратил нанятое имущество либо возвратил его несвоевременно, наймодатель вправе потребовать внесения платы за пользование имуществом за все время просрочки. В случае, когда указанная плата не
покрывает причиненных наймодателю убытков, он может потребовать их возмещения.
4. В случае, когда за несвоевременный возврат нанятого имущества договором предусмотрена неустойка, убытки могут быть взысканы в полной сумме сверх неустойки, если иное не предусмотрено договором.
Статья 562. Переход имущества в собственность нанимателя
1. В договоре имущественного найма может быть предусмотрено, что нанятое имущество переходит в собственность нанимателя на условиях, определенных соглашением сторон.
2. Если условие о выкупе нанятого имущества не предусмотрено в договоре, оно может быть установлено дополнительным соглашением сторон, которые при этом вправе договориться о зачете ранее выплаченной платы за пользование имуществом в выкупную цену.
3. Законодательными актами могут быть установлены случаи запрещения выкупа нанятого имущества.
Статья 563. Защита прав нанимателя
Нанимателю обеспечивается защита его права на нанятое имущество наравне с защитой права собственности.
На наймодателе не лежит ответственность перед нанимателем за нарушения пользования, которые производят своими насильственными действиями третьи лица, не имеющие каких-либо прав на нанятое имущество.
Наниматель имеет право предъявлять иски и иным образом защищать принадлежащие ему права от своего имени.
Статья 564. Особенности отдельных видов имущественного найма и найма отдельных видов имущества
К отдельным видам договора имущественного найма и договорам найма отдельных видов имущества (лизинга, аренды предприятий, аренды зданий и сооружений, аренды транспортных средств, проката) положения, предусмотренные настоящим параграфом, применяются, если иное не предусмотрено законодательными актами и правилами настоящего Кодекса о них.
Сноска. Статья 564 - с изменениями, внесенными Законом РК от 5 июля 2000 года N 75-II.
Параграф 2. Лизинг
Статья 565. Договор лизинга
1. По договору лизинга лизингодатель обязуется приобрести в собственность указанное лизингополучателем имущество у продавца и предоставить лизингополучателю это имущество во временное владение и пользование за плату.
2. Договором лизинга может быть предусмотрено, что выбор продавца и приобретаемого имущества осуществляется лизингодателем.
3. Законодательными актами Республики Казахстан могут быть установлены особенности отдельных видов договора лизинга.
Сноска. Статья 565 с изменениями, внесенными законами РК от 10.03.2004 № 532; от 05.10.2018 № 184-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 566. Предмет лизинга
Предметом лизинга могут быть здания, сооружения, машины, оборудование, инвентарь, транспортные средства, земельные участки и любые другие непотребляемые вещи.
Предметом лизинга может быть движимое имущество, являющееся предметом залога.
Предметом лизинга не могут быть ценные бумаги и природные ресурсы. Сноска. Статья 566 с изменениями, внесенными Законом РК от 22.04.2015 №
308-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 567. Существенные условия договора лизинга
В договоре лизинга помимо условий, указанных в настоящегостатье 542 Кодекса, должны содержаться следующие условия:
1) наименование продавца имущества; 2) условия и срок передачи имущества лизингополучателю; 3) размер и периодичность платежей; 4) срок договора;
5) условия перехода имущества в собственность лизингополучателя, если такой переход предусмотрен договором;
6) наличие обременений.
Существенные условия договора финансового лизинга устанавливаются Республики Казахстан "О финансовом лизинге".Законом
Сноска. Статья 567 с изменениями, внесенными законами РК от 22.04.2015 № 308-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 568. Уведомление продавца о сдаче имущества в лизинг
Лизингодатель, приобретая имущество для лизингополучателя, должен уведомить продавца о том, что имущество предназначено для передачи его в лизинг определенному лицу.
Статья 569. Риск случайной гибели или порчи имущества
Риск случайной гибели или порчи имущества, являющегося предметом лизинга, переходит к лизингополучателю в момент передачи имущества, если иное не предусмотрено договором.
Статья 570. Платежи по договору лизинга
Периодические платежи, подлежащие уплате в соответствии с договором лизинга, могут быть рассчитаны с учетом амортизации всей или существенной части стоимости имущества по цене на момент заключения договора.
Статья 571. Передача лизингополучателю предмета договора лизинга
1. Имущество, являющееся предметом договора лизинга, передается продавцом непосредственно лизингополучателю в месте нахождения последнего, если иное не предусмотрено договором или не вытекает из существа обязательства.
2. В случае, когда имущество, являющееся предметом договора лизинга, не передано лизингополучателю в указанный в этом договоре срок, лизингополучатель вправе, если просрочка допущена по обстоятельствам, за которые отвечает лизингодатель, потребовать расторжения договора и возмещения убытков.
3. Движимое имущество, являющееся предметом залога, может передаваться по договору лизинга.
Сноска. Статья 571 с изменениями, внесенными Законом РК от 22.04.2015 № 308-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 572. Ответственность продавца
1. Лизингополучатель вправе предъявлять непосредственно продавцу имущества, являющегося предметом договора лизинга, требования, вытекающие из договора купли-продажи, заключенного между продавцом и лизингодателем, в частности, в отношении качества и комплектности имущества, сроков его поставки и в других случаях ненадлежащего исполнения договора продавцом. При этом лизингополучатель имеет права и несет обязанности, предусмотренные настоящим Кодексом для покупателя, кроме обязанности оплатить приобретенное имущество, как если бы он был стороной купли-продажи указанного имущества.
В отношениях с продавцом лизингополучатель и лизингодатель выступают как солидарные кредиторы.
2. Если иное не предусмотрено договором лизинга, лизингодатель не отвечает перед лизингополучателем за выполнение продавцом требований, вытекающих из договора купли-продажи, кроме случаев, когда право выбора продавца лежит на лизингодателе. В последнем случае лизингополучатель вправе по своему выбору предъявлять требования, вытекающие из договора купли-продажи, как непосредственно продавцу имущества, так и к лизингодателю, которые несут солидарную ответственность.
Параграф 3. Аренда предприятия
Статья 573. Договор аренды предприятия
1. По договору аренды предприятия арендодатель обязуется предоставить арендатору за плату для осуществления предпринимательской деятельности во временное владение и пользование предприятие в целом как имущественный комплекс ( настоящего Кодекса), в том числе право на фирменноестатья 119 наименование и (или) коммерческое обозначение правообладателя, на охраняемую коммерческую информацию, а также на другие предусмотренные договором объекты исключительных прав - товарный знак, знак обслуживания и т.д. (комплекс исключительных прав), за исключением тех прав и обязанностей, которые арендодатель не вправе передавать другим лицам.
2. Права арендодателя, полученные им на основании лицензии на занятие соответствующей деятельностью, не подлежат передаче арендатору, если иное не установлено законодательными актами. Включение в состав передаваемого по договору предприятия обязательств, исполнение которых арендатором невозможно при отсутствии у него такого специального разрешения (лицензии), не освобождает арендодателя от соответствующих обязательств перед кредиторами.
3. Права и обязанности по отношению к работникам предприятия переходят от арендодателя к арендатору в порядке, предусмотренном трудовым законодательством Республики Казахстан.
Сноска. Статья 573 с изменениями, внесенными Законом РК от 15 мая 2007 г. N 253.
Статья 574. Права кредиторов при аренде предприятия
1. О переводе долгов на арендатора арендодатель обязан письменно уведомить своих кредиторов до заключения договора аренды, которые в случае несогласия с таким переводом вправе в течение трех месяцев со дня получения уведомления потребовать от арендодателя прекращения или досрочного исполнения соответствующих обязательств и возмещения убытков. Если в указанный срок какое-либо из этих требований не предъявлено, кредитор признается давшим согласие на перевод соответствующего долга на арендатора.
2. Предприятие может быть передано арендатору только после завершения расчетов с кредиторами, которые потребовали от арендодателя прекращения или досрочного исполнения обязательств.
3. После передачи предприятия как имущественного комплекса в аренду арендодатель и арендатор несут солидарную ответственность по включенным в состав переданного предприятия долгам, которые были переведены на арендатора без согласия кредитора.
Статья 575. Форма договора аренды предприятия
Сноска. Заголовок статьи 575 в редакции Закона РК от 25.03.2011 № (421-IV вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
1. Договор аренды предприятия заключается в письменной форме путем составления единого документа, подписанного сторонами.
2. Несоблюдение формы договора аренды предприятия влечет ничтожность договора.
3. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Сноска. Статья 575 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 576. Передача арендованного предприятия
Передача предприятия арендатору осуществляется по передаточному акту. Подготовка предприятия к передаче, включая составление и представление на подписание передаточного акта, является обязанностью арендодателя и осуществляется за его счет, если иное не предусмотрено договором.
Статья 577. Обязанности арендатора по содержанию предприятия и оплате расходов по его эксплуатации
1. Арендатор предприятия обязан в течение всего срока действия договора поддерживать предприятие в надлежащем техническом состоянии, включая его текущий и капитальный ремонт, если иное не предусмотрено договором.
2. На арендатора возлагаются расходы, связанные с эксплуатацией арендованного предприятия, если иное не предусмотрено договором.
Статья 578. Пользование имуществом арендованного предприятия
Арендатор вправе без согласия арендодателя продавать, обменивать, предоставлять во временное пользование либо взаймы материальные ценности, входящие в состав имущества арендованного предприятия, сдавать их в субаренду и передавать свои права и обязанности по договору аренды в отношении таких ценностей другому лицу, при условии, что это не влечет уменьшения стоимости предприятия и не нарушает других положений договора аренды, если иное не предусмотрено законодательными актами или договором.
Статья 579. Внесение арендатором изменений и улучшений в арендованное предприятие
1. Арендатор вправе без согласия арендодателя вносить изменения в состав арендованного имущественного комплекса, проводить его реконструкцию,
расширение, техническое перевооружение, увеличивающее его стоимость, если иное не предусмотрено договором аренды предприятия.
2. Арендатор предприятия имеет право на возмещение ему стоимости неотделимых улучшений арендованного имущества независимо от разрешения арендодателя на такие улучшения, если иное не предусмотрено договором аренды предприятия.
3. Арендодатель может быть освобожден судом от обязанности возместить арендатору стоимость неотделимых улучшений арендованного имущества, если докажет, что издержки арендатора на эти улучшения повышают стоимость арендованного имущества несоразмерно улучшению его эксплуатационных свойств или при осуществлении таких улучшений были нарушены принципы добросовестности и разумности.
Статья 580. Возврат арендованного предприятия
При прекращении договора аренды предприятие в целом как имущественный комплекс должно быть возвращено арендодателю с соблюдением правил, предусмотренных , и настоящего Кодекса. Подготовкастатьями 573 574 576 предприятия к передаче арендодателю, включая составление и представление на подписание передаточного акта, является в этом случае обязанностью арендатора и осуществляется за его счет, если иное не предусмотрено договором.
Параграф 4. Аренда зданий и сооружений
Статья 581. Договор аренды здания или сооружения
1. По договору аренды здания или сооружения арендодатель обязуется передать во временное владение и пользование арендатору здание или сооружение.
2. Правила настоящего параграфа применяются к аренде предприятий, если иное не предусмотрено правилами настоящего Кодекса об аренде предприятия.
Статья 582. Форма договора аренды здания или сооружения
Сноска. Заголовок статьи 582 с изменением, внесенным Законом РК от 25.03.2011 № (вводится в действие по истечении десяти календарных421-IV дней после его первого официального опубликования).
1. Договор аренды здания или сооружения заключается в письменной форме путем составления единого документа, подписанного сторонами.
2. Несоблюдение формы договора аренды здания или сооружения влечет его ничтожность.
3. Исключен Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Сноска. Статья 582 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 583. Размер арендной платы
1. Договор аренды здания или сооружения должен предусматривать размер арендной платы. При отсутствии согласованного сторонами в письменной форме условия о размере арендной платы договор аренды здания или сооружения считается незаключенным. При этом правила определения цены, предусмотренные пунктом 3 настоящего Кодекса, не применяются.статьи 385
2. В случаях, когда плата за аренду здания или сооружения установлена в договоре на единицу площади здания (сооружения) или иного показателя его размера, арендная плата определяется, исходя из фактического размера переданного арендатору здания или сооружения.
Статья 584. Передача здания или сооружения
1. Передача здания или сооружения арендодателем и принятие его арендатором осуществляется по передаточному акту или иному документу о передаче, подписываемому сторонами.
2. Уклонение одной из сторон от подписания документа о передаче здания или сооружения на условиях, предусмотренных договором, рассматривается как отказ соответственно арендодателя от исполнения обязанности по передаче имущества, а арендатора - от принятия имущества.
3. При прекращении договора аренды здания или сооружения арендованное здание или сооружение должно быть возвращено арендодателю с соблюдением правил, предусмотренных пунктами 1 и 2 настоящей статьи.
Параграф 5. Аренда транспортных средств
Статья 585. Договор аренды транспортного средства с экипажем
1. По договору аренды (фрахтования на время) транспортного средства с предоставлением услуг по управлению и технической эксплуатации (договор аренды транспортного средства с экипажем) арендодатель обязан предоставить арендатору транспортное средство за плату во временное владение и пользование и оказывать своими силами услуги по управлению им и по его технической эксплуатации.
2. Правила настоящей главы о преимущественном праве арендатора на заключение договора аренды на новый срок и о возобновлении договора аренды на неопределенный срок (статьи и настоящего Кодекса) к договору557 558 аренды транспортного средства с экипажем не применяются.
Сноска. Статья 585 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 586. Форма договора аренды транспортного средства с экипажем
Договор аренды транспортного средства с экипажем должен быть заключен в письменной форме, независимо от его срока.
Статья 587. Обязанность арендодателя по содержанию транспортного средства
Арендодатель в течение всего срока действия договора обязан поддерживать надлежащее состояние сданного в аренду транспортного средства, включая осуществление текущего и капитального ремонта и предоставление необходимых принадлежностей.
Статья 588. Обязанности арендодателя по управлению и технической эксплуатации транспортного средства
1. Объем предоставляемых арендатору арендодателем услуг по управлению и технической эксплуатации транспортного средства должен обеспечивать его нормальную и безопасную эксплуатацию в соответствии с целями аренды, указанными в договоре. Договором аренды транспортного средства с экипажем может быть предусмотрен более широкий круг услуг, предоставляемых арендатору.
2. Состав экипажа транспортного средства и его квалификация должны отвечать обязательным для сторон правилам и условиям договора, а если обязательными для сторон правилами такие требования не установлены, -
требованиям обычной практики эксплуатации транспортного средства данного вида и условиям договора.
3. Члены экипажа сохраняют трудовые отношения с арендодателем. Они подчиняются распоряжениям арендодателя, относящимся к управлению и технической эксплуатации, и распоряжениям арендатора, касающимся коммерческой эксплуатации транспортного средства.
4. Если договором аренды не предусмотрено иное, расходы по оплате услуг членов экипажа, а также расходы по их содержанию несет арендодатель.
Статья 589. Обязанность арендатора по оплате расходов, связанных с коммерческой эксплуатацией транспортного средства
Если иное не предусмотрено договором аренды транспортного средства с экипажем, арендатор несет расходы по оплате топлива и других расходуемых в процессе эксплуатации материалов, по оплате сборов и другие расходы, возникающие в связи с коммерческой эксплуатацией транспортного средства.
Статья 590. Страхование транспортного средства
Если иное не предусмотрено договором аренды транспортного средства с экипажем, обязанность страховать транспортное средство и (или) страховать ответственность за ущерб, который может быть причинен им или в связи с его эксплуатацией, возлагается на арендодателя в тех случаях, когда такое страхование является обязательным.
Статья 591. Договоры с третьими лицами об использовании транспортного средства
Если иное не предусмотрено законодательными актами Республики Казахстан или договором, арендатор в рамках осуществления коммерческой эксплуатации арендованного транспортного средства вправе без согласия арендодателя от своего имени заключать с третьими лицами договоры перевозки и иные договоры, если они не противоречат целям использования транспортного средства, указанным в договоре аренды, а если такие цели не установлены – назначению транспортного средства.
Сноска. Статья 591 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 592. Ответственность за вред, причиненный транспортному средству
В случае гибели или повреждения арендованного транспортного средства арендатор обязан возместить арендодателю причиненные убытки, если последний докажет, что гибель или повреждение транспортного средства произошли по обстоятельствам, за которые арендатор отвечает в соответствии с законодательными актами или договором.
Статья 593. Ответственность за вред, причиненный транспортным средством
Ответственность за вред, причиненный третьим лицам арендованным транспортным средством, его механизмами, устройствами, оборудованием и т.п. несет арендатор в соответствии с правилами настоящего Кодекса.статьи 931
Статья 594. Особенности аренды отдельных видов транспортных средств
Особенности аренды отдельных видов транспортных средств с предоставлением услуг по управлению и технической эксплуатации, помимо предусмотренных настоящим параграфом, могут быть установлены законодательными актами.
Сноска. Статья 594 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 594-1. Договор аренды транспортного средства без экипажа
1. По договору аренды транспортного средства без экипажа арендодатель предоставляет арендатору транспортное средство за плату во временное владение и в пользование без оказания услуг по управлению им и его технической эксплуатации.
2. Правила о возобновлении договора аренды на неопределенный срок и преимущественном праве арендатора на заключение договора аренды на новый срок ( и настоящего Кодекса) к договору аренды транспортногостатьи 557 558 средства без экипажа не применяются.
Сноска. Кодекс дополнен статьей 594-1 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных
дней после его первого официального опубликования).
Статья 594-2. Форма договора аренды транспортного средства без экипажа
Договор аренды транспортного средства без экипажа должен быть заключен в письменной форме независимо от его срока.
Сноска. Кодекс дополнен статьей 594-2 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 594-3. Обязанность арендатора по содержанию транспортного средства
Если иное не предусмотрено договором аренды транспортного средства без экипажа, арендатор в течение всего срока договора аренды транспортного средства без экипажа обязан поддерживать надлежащее состояние арендованного транспортного средства, включая осуществление текущего и капитального ремонта.
Сноска. Кодекс дополнен статьей 594-3 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 594-4. Обязанность арендатора по оплате расходов на содержание транспортного средства
Если иное не предусмотрено договором аренды транспортного средства без экипажа, арендатор несет расходы на содержание арендованного транспортного средства, его страхование, включая страхование своей ответственности, а также расходы, возникающие в связи с его эксплуатацией.
Сноска. Кодекс дополнен статьей 594-4 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 594-5. Договоры с третьими лицами об использовании транспортного средства
Если договором аренды транспортного средства без экипажа не предусмотрено иное, арендатор вправе без согласия арендодателя сдавать арендованное транспортное средство в субаренду на условиях договора аренды транспортного средства с экипажем или без экипажа.
Сноска. Кодекс дополнен статьей 594-5 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 594-6. Ответственность за вред, причиненный транспортным средством
Ответственность за вред, причиненный третьим лицам транспортным средством, его механизмами, устройствами, оборудованием, несет арендатор в соответствии с правилами настоящего Кодекса.статьи 931
Сноска. Кодекс дополнен статьей 594-6 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 594-7. Особенности аренды отдельных видов транспортных средств
Особенности аренды отдельных видов транспортных средств без предоставления услуг по управлению ими и их технической эксплуатации могут быть установлены иными законодательными актами.
Сноска. Кодекс дополнен статьей 594-7 в соответствии с Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Параграф 6. Прокат
Статья 595. Договор проката
1. По договору проката наймодатель, осуществляющий сдачу движимого имущества внаем в качестве постоянной предпринимательской деятельности, обязуется предоставить нанимателю имущество за плату во временное владение и пользование.
Имущество, предоставленное по договору проката, используется для потребительских целей, если иное не предусмотрено договором или не вытекает из существа обязательства.
2. Договор проката заключается в письменной форме. 3. Договор проката является публичным ( настоящего Кодекса).статья 387
Статья 596. Срок договора проката
1. Договор проката заключается на срок до одного года. 2. Правила о преимущественном праве нанимателя на возобновление
договора имущественного найма и о возобновлении договора имущественного найма на неопределенный срок ( , настоящего Кодекса) к договорустатьи 557 558 проката не применяются.
3. Наниматель вправе отказаться от договора проката в любое время, если иное не предусмотрено договором.
Статья 597. Предоставление имущества нанимателю
Наймодатель, заключающий договор проката, обязан в присутствии нанимателя проверить исправность сдаваемого внаем имущества, а также ознакомить нанимателя с правилами эксплуатации имущества либо выдать ему письменные инструкции о пользовании этим имуществом.
Статья 598. Устранение недостатков сданного внаем имущества
При обнаружении нанимателем недостатков сданного внаем имущества, полностью или частично препятствующих пользованию им, наймодатель обязан в десятидневный срок со дня заявления нанимателя о недостатках, если более короткий срок не установлен договором, безвозмездно устранить недостатки имущества на месте либо произвести замену данного имущества другим аналогичным имуществом, находящимся в надлежащем состоянии.
Если недостатки сданного внаем имущества явились следствием нарушения нанимателем правил эксплуатации и содержания имущества, наниматель оплачивает наймодателю стоимость ремонта и транспортировки имущества.
Статья 599. Плата за пользование имуществом
1. Плата за пользование имуществом по договору проката устанавливается в виде определенных в твердой сумме платежей, вносимых периодически или единовременно.
2. В случае досрочного возврата имущества нанимателем наймодатель возвращает ему соответствующую часть полученной платы за пользование имуществом, исчисляя ее со дня, следующего за днем фактического возврата имущества.
3. (исключен) Сноска. В статью 599 внесены изменения - Законом РК от 29 марта 2000 г. N
42.
Статья 600. Пользование нанятым имуществом
1. Капитальный и текущий ремонт имущества, сданного внаем по договору проката, является обязанностью наймодателя.
2. Сдача в поднаем имущества, предоставленного нанимателю по договору проката, передача нанимателем своих прав и обязанностей по договору проката другому лицу, предоставление этого имущества в безвозмездное пользование, залог прав нанимателя и внесение их в качестве имущественного вклада в хозяйственные товарищества, акционерные общества, взноса в производственные кооперативы не допускаются.
Глава 30. Наем жилища
Статья 601. Договор найма жилища
1. По договору найма жилища собственник жилища или уполномоченное им лицо (наймодатель) обязуется предоставить гражданину (нанимателю) и членам его семьи жилище в пользование за плату.
2. Договор найма жилища должен быть заключен в письменной форме. Сноска. Статья 601 с изменением, внесенным Законом РК от 25.03.2011 №
421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 602. Договор найма жилища в домах государственного жилищного фонда
1. Договор найма жилища в домах государственного жилищного фонда заключается на основании решения местного исполнительного органа, государственного учреждения или государственного предприятия о предоставлении жилища.
2. Условия предоставления жилища, права и обязанности сторон, основания изменения и расторжения договора найма жилища в домах государственного жилищного фонда устанавливаются жилищным законодательством.
Сноска. Статья 602 с изменением, внесенным Законом РК от 22.07.2011 № 479-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 603. Договор найма жилища в домах частного жилищного фонда
Условия найма жилища в домах частного жилищного фонда определяются соглашением сторон, если иное не предусмотрено жилищным законодательством .
Глава 31. Безвозмездное пользование имуществом
Статья 604. Договор безвозмездного пользования имуществом
1. По договору безвозмездного пользования имуществом (договору ссуды) одна сторона (ссудодатель) передает имущество в безвозмездное временное пользование другой стороне (ссудополучателю), а последняя обязуется вернуть то же имущество в том состоянии, в каком она его получила, с учетом нормального износа, или в состоянии, обусловленном договором.
2. К договору безвозмездного пользования имуществом соответственно применяются правила , пункта 1 и части первой пункта 2 ,статьи 541 статьи 545
, , подпунктов 1), 2), 4) пункта 2 ,статьи 550 статьи 555 статьи 556 статьи 558 настоящего Кодекса.
3. К договору безвозмездного пользования государственным имуществом применяются положения настоящего Кодекса с особенностями, установленными законодательным актом Республики Казахстан о государственном имуществе и иными законодательными актами Республики Казахстан.
Сноска. Статья 604 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 605. Ссудодатель
1. Право передачи имущества в безвозмездное пользование принадлежит его собственнику и иным лицам, уполномоченным на то законодательными актами или собственником.
2. Коммерческая организация не вправе передавать имущество в безвозмездное пользование лицу, являющемуся ее учредителем, участником ( акционером), директором, членом ее органов управления или контроля.
Статья 606. Предоставление имущества в безвозмездное пользование
1. Ссудодатель обязан предоставить имущество в состоянии, соответствующем условиям договора безвозмездного пользования и назначению имущества.
2. Имущество предоставляется в безвозмездное пользование со всеми его принадлежностями и относящимися к нему документами (документами, удостоверяющими комплектность, безопасность, качество имущества, порядок эксплуатации и т.п.), если иное не предусмотрено договором.
Если такие принадлежности и документы переданы не были, однако без них имущество не может быть использовано по назначению либо его использование в значительной степени утрачивает ценность для ссудополучателя, последний вправе потребовать предоставления ему таких принадлежностей и документов либо расторжения договора и возмещения понесенного им реального ущерба.
Статья 607. Ответственность за недостатки имущества, переданного в безвозмездное пользование
1. Ссудодатель, передавший имущество в безвозмездное пользование, отвечает за недостатки этого имущества, которые он умышленно или по грубой неосторожности не оговорил при передаче имущества, если при этом причинен реальный ущерб ссудополучателю.
2. Ссудодатель, извещенный о требованиях ссудополучателя или о его намерении устранить недостатки имущества за счет ссудодателя, может без промедления произвести замену неисправной вещи другой аналогичной вещью, находящейся в надлежащем состоянии.
3. Ссудодатель не отвечает за недостатки имущества, которые были им оговорены при заключении договора или были заранее известны ссудополучателю либо должны были быть обнаружены ссудополучателем во время осмотра имущества или проверки его исправности при заключении договора или при передаче вещи.
Статья 608. Права третьих лиц на имущество, передаваемое в безвозмездное пользование
Передача имущества в безвозмездное пользование не является основанием для изменения или прекращения прав третьих лиц на это имущество.
При заключении договора безвозмездного пользования ссудодатель обязан предупредить ссудополучателя о всех правах третьих лиц на это имущество ( сервитуте, праве залога и т.п.). Неисполнение этой обязанности дает ссудополучателю право требовать расторжения договора и возмещения понесенного им реального ущерба.
Статья 609. Обязанности ссудополучателя по содержанию имущества
Ссудополучатель обязан поддерживать имущество, полученное в безвозмездное пользование, в исправном состоянии, включая осуществление текущего и капитального ремонта, и нести все расходы по его содержанию, если иное не предусмотрено договором безвозмездного пользования.
Статья 610. Риск случайной гибели или случайного повреждения имущества
Ссудополучатель несет риск случайной гибели или случайного повреждения полученного в безвозмездное пользование имущества, если имущество погибло или было испорчено в связи с тем, что он использовал его не в соответствии с договором безвозмездного пользования или назначением имущества либо передал его третьему лицу без согласия ссудодателя.
Ссудополучатель несет также риск случайной гибели или случайного повреждения имущества, если с учетом фактических обстоятельств мог предотвратить его гибель или порчу, пожертвовав своим имуществом, но предпочел сохранить свое имущество.
Статья 611. Ответственность за вред, причиненный третьему лицу в результате использования имущества
Ссудодатель отвечает за вред, причиненный третьему лицу в результате использования имущества, если не докажет, что вред причинен вследствие умысла или грубой неосторожности ссудополучателя или лица, у которого это имущество оказалось с согласия ссудодателя.
Статья 612. Досрочное расторжение договора
1. Ссудодатель вправе потребовать досрочного расторжения договора безвозмездного пользования в случаях, когда ссудополучатель:
1) использует имущество не в соответствии с договором или назначением имущества;
2) не выполняет обязанностей по поддержанию имущества в исправном состоянии или его содержанию;
3) существенно ухудшает состояние имущества; 4) без согласия ссудодателя передал имущество третьему лицу.
2. Ссудополучатель вправе требовать досрочного расторжения договора безвозмездного пользования:
1) при обнаружении недостатков, делающих нормальное использование имущества невозможным или обременительным, о наличии которых он не знал и не мог знать в момент заключения договора;
2) если имущество в силу обстоятельств, за которые он не отвечает, окажется в состоянии, непригодном для использования;
3) если при заключении договора ссудодатель не предупредил его о правах третьих лиц на передаваемое имущество;
4) при неисполнении ссудодателем обязанности передать имущество либо его принадлежности и относящиеся к нему документы.
Статья 613. Отказ от договора
1. Каждая из сторон вправе во всякое время отказаться от договора безвозмездного пользования, заключенного без указания срока, известив об этом другую сторону за один месяц, если договором не предусмотрен иной срок извещения.
2. Если иное не предусмотрено договором, ссудополучатель вправе во всякое время отказаться от договора, заключенного с указанием срока, в порядке, предусмотренном пунктом 1 настоящей статьи.
Статья 614. Изменение сторон в договоре
1. Ссудодатель вправе произвести отчуждение имущества или передать его в возмездное пользование третьему лицу. При этом к новому собственнику или пользователю переходят права из ранее заключенного договора безвозмездного пользования, а его права в отношении имущества обременяются правами ссудополучателя.
2. В случае смерти гражданина-ссудодателя либо реорганизации или ликвидации юридического лица-ссудодателя права и обязанности ссудодателя по договору безвозмездного пользования переходят к наследнику (правопреемнику)
или к другому лицу, к которому перешло право собственности на имущество или иное право, на основании которого имущество было передано в безвозмездное пользование.
В случае реорганизации юридического лица-ссудополучателя его права и обязанности по договору переходят к юридическому лицу, являющемуся его правопреемником, если иное не предусмотрено договором.
Статья 615. Прекращение договора
Договор безвозмездного пользования прекращается в случае смерти гражданина-ссудополучателя или ликвидации юридического лица-ссудополучателя, если иное не предусмотрено договором.
Глава 32. Подряд Параграф 1. Общие положения о подряде
Статья 616. Договор подряда
1. По договору подряда одна сторона (подрядчик) обязуется выполнить по заданию другой стороны (заказчика) определенную работу и сдать ее результат заказчику в установленный срок, а заказчик обязуется принять результат работы и оплатить его (уплатить цену работы). Работа выполняется за риск подрядчика, если иное не предусмотрено законодательными актами или договором.
2. Если иное не предусмотрено договором, подрядчик самостоятельно определяет способы выполнения задания заказчика.
3. К отдельным видам договора подряда (бытовой подряд, строительный подряд, подряд на проектные или изыскательские работы, подряд на научно-исследовательские, опытно-конструкторские и технологические работы) положения, предусмотренные настоящим параграфом, применяются, если иное не установлено правилами настоящего Кодекса о договорах этих видов.
4. Отношения по отдельным видам договора подряда могут регулироваться наряду с настоящим Кодексом также законодательными актами об отдельных видах договоров подряда.
Статья 617. Выполнение работы иждивением подрядчика
1. Если иное не предусмотрено договором, работа выполняется иждивением подрядчика: из его материалов, его силами и средствами.
2. Подрядчик несет ответственность за ненадлежащее качество предоставленных им материалов и оборудования, а также за предоставление материалов и оборудования, обремененных правами третьих лиц.
Статья 618. Риск случайной гибели материалов
Если иное не предусмотрено законодательными актами или договором, риск случайной гибели или случайного повреждения материалов до наступления срока сдачи подрядчиком обусловленной договором работы несет сторона, предоставившая материалы.
При просрочке передачи или приемки результата работы риск несет просрочившая сторона, если иное не установлено законодательными актами или договором.
Статья 619. Генеральный подрядчик и субподрядчик
1. Если из законодательных актов или договора не вытекает иное, подрядчик вправе привлечь к исполнению договора других лиц (субподрядчиков). В этом случае подрядчик выступает перед заказчиком в качестве генерального подрядчика, а перед субподрядчиком - в качестве заказчика.
2. Генеральный подрядчик несет перед субподрядчиком ответственность за неисполнение или ненадлежащее исполнение обязательства заказчиком, а перед заказчиком - ответственность за неисполнение или ненадлежащее исполнение обязательства субподрядчиком.
3. Если иное не предусмотрено законодательными актами или договором, заказчик и субподрядчик не вправе предъявлять друг другу требований, связанных с нарушением ими договоров с генеральным подрядчиком.
4. С согласия генерального подрядчика заказчик вправе заключить договор на выполнение отдельных работ с третьими лицами. В этом случае третье лицо несет ответственность за неисполнение или ненадлежащее исполнение работы непосредственно перед заказчиком.
5. Если договор заключен одновременно с двумя или более подрядчиками и предмет обязательства неделим, то подрядчики признаются по отношению к заказчику солидарными должниками и соответственно солидарными кредиторами. При делимости предмета обязательства, а также в других случаях, предусмотренных законодательными актами или соглашением сторон, каждый из подрядчиков приобретает права и несет обязанности по отношению к заказчику в пределах своей доли.
Статья 620. Сроки выполнения работы
1. В договоре подряда указываются начальный и конечный сроки выполнения работы. По согласованию между сторонами в договоре могут быть предусмотрены также сроки завершения отдельных этапов работы ( промежуточные сроки).
Если иное не предусмотрено договором, подрядчик несет ответственность за нарушение как начального и конечного, так и промежуточных сроков выполнения работы.
2. Указанные в договоре подряда начальный, конечный и промежуточные сроки выполнения работы могут быть изменены в случаях и в порядке, предусмотренных договором.
Статья 621. Цена работы
1. В договоре подряда указывается цена подлежащей выполнению работы или способы ее определения. При отсутствии в договоре таких указаний и недостижении согласия сторон цена устанавливается судом, исходя из обычно применяемых за аналогичные работы цен с учетом необходимых расходов, понесенных сторонами.
2. Цена работы может быть определена путем составления сметы. В случаях, когда работа выполняется в соответствии со сметой, составленной
подрядчиком, смета приобретает силу и становится частью договора с момента подтверждения ее заказчиком.
Цена работы (смета) может быть приблизительной или твердой. При отсутствии других указаний в договоре цена работы (смета) считается твердой.
3. Если возникла необходимость в проведении дополнительных работ и по этой причине - в существенном превышении определенной приблизительно цены работы (приблизительной сметы), подрядчик обязан своевременно предупредить об этом заказчика и приостановить работу. Заказчик, не согласившийся на превышение цены работы (сметы), вправе отказаться от договора. В этом случае подрядчик может требовать от заказчика уплаты ему цены за выполненную часть работы.
4. Подрядчик, своевременно не предупредивший заказчика о необходимости превышения указанной в договоре цены (сметы), обязан выполнить договор, сохраняя право на оплату работ по цене, определенной в договоре.
5. Подрядчик не вправе требовать увеличения твердой цены (твердой сметы), а заказчик - ее уменьшения, в том числе и в случае, когда в момент заключения договора исключалась возможность предусмотреть полный объем подлежащей выполнению работы или необходимых для этого расходов.
При существенном возрастании после заключения договора стоимости материалов и оборудования, которые должны быть предоставлены подрядчиком, а также оказываемых ему третьими лицами услуг подрядчик имеет право требовать увеличения установленной цены (сметы), а при отказе заказчика выполнить это требование - расторжения договора.
Статья 622. Экономия подрядчика
1. В случаях, когда фактические расходы подрядчика оказались меньше тех, которые учитывались при определении цены (составлении сметы), подрядчик сохраняет право на оплату работ по цене, предусмотренной договором (сметой), если заказчик не докажет, что полученная подрядчиком экономия отрицательно повлияла на качество выполненной работы.
2. В договоре подряда может быть предусмотрено распределение полученной подрядчиком экономии между сторонами.
Статья 623. Порядок оплаты работы
1. Если договором подряда не предусмотрена предварительная оплата выполненной работы или отдельных ее этапов, заказчик обязан уплатить подрядчику обусловленную цену после окончательной сдачи результата работы при условии, что работа выполнена надлежащим образом и в согласованный срок либо, с согласия заказчика, - досрочно.
2. Подрядчик вправе требовать выплаты ему аванса либо задатка только в случаях и в размере, указанных в законодательных актах или договоре.
Статья 624. Право на удержание
1. При неисполнении заказчиком обязанности уплатить установленную цену либо иную сумму, причитающуюся подрядчику в связи с выполнением договора, подрядчик имеет право на удержание результата работы, а также принадлежащего заказчику оборудования, переданной для переработки вещи, остатка неиспользованных материалов и другого оказавшегося у него имущества заказчика до уплаты заказчиком соответствующих сумм.
2. Договором может быть предусмотрено удержание заказчиком части причитающегося подрядчику вознаграждения для покрытия расходов по устранению недостатков, обнаруженных в пределах предусмотренного в статье
настоящего Кодекса срока.630
Статья 625. Выполнение работы с использованием материалов заказчика
1. Подрядчик обязан использовать предоставленные заказчиком материалы экономно и расчетливо, после окончания работы представить заказчику отчет об израсходовании материалов, а также возвратить остаток их либо, с согласия заказчика, уменьшить цену работы с учетом стоимости остающегося у подрядчика неиспользованного материала.
2. Подрядчик несет ответственность за ненадлежащее выполнение работы, вызванное недостатками предоставленных заказчиком материалов, если не докажет, что недостатки не могли быть им обнаружены при надлежащей приемке этих материалов.
Статья 626. Ответственность подрядчика за несохранность предоставленного заказчиком имущества
Подрядчик несет ответственность за несохранность предоставленных заказчиком материалов, оборудования, переданной для переработки вещи или иного имущества, оказавшегося во владении подрядчика в связи с исполнением договора подряда.
Статья 627. Права заказчика во время выполнения работ
1. Заказчик вправе во всякое время проверять ход и качество работ, не вмешиваясь в деятельность подрядчика.
2. Если подрядчик не приступает своевременно к исполнению договора или выполняет работу настолько медленно, что окончание ее к сроку становится явно невозможным, заказчик вправе отказаться от договора и потребовать возмещения убытков.
3. Если во время выполнения работы станет очевидным, что она не будет выполнена надлежащим образом, заказчик вправе назначить подрядчику разумный срок для устранения недостатков и при неисполнении подрядчиком в назначенный срок этого требования отказаться от договора либо поручить исправление работы третьему лицу за счет подрядчика, а также потребовать возмещения убытков.
4. Если иное не предусмотрено договором, заказчик может в любое время до сдачи ему работы отказаться от договора подряда, уплатив подрядчику за работу, выполненную до получения уведомления об отказе заказчика от договора. Заказчик также обязан возместить подрядчику убытки, причиненные прекращением договора, в пределах разницы между частью цены, выплаченной за выполненную работу, и ценой, определенной за всю работу.
Статья 628. Обстоятельства, о которых подрядчик обязан предупредить заказчика
1. Подрядчик обязан немедленно предупредить заказчика и до получения от него указаний приостановить работу при обнаружении:
1) непригодности или недоброкачественности предоставленных заказчиком материалов, оборудования, технической документации или переданной для обработки вещи;
2) возможных неблагоприятных для заказчика последствий выполнения его указаний о способе исполнения работы;
3) иных не зависящих от подрядчика обстоятельств, которые грозят годности или прочности результатов выполняемой работы либо создают невозможность ее завершения в срок.
2. Подрядчик, не предупредивший заказчика об обстоятельствах, указанных в пункте 1 настоящей статьи, либо продолживший работу, не дожидаясь истечения разумного срока для ответа на предупреждение или несмотря на своевременное указание заказчика о приостановлении работ, не вправе при предъявлении к нему или им к заказчику соответствующих требований ссылаться на указанные обстоятельства.
3. Если заказчик, несмотря на своевременное и обоснованное предупреждение со стороны подрядчика об обстоятельствах, указанных в пункте 1 настоящей статьи, в разумный срок не заменит непригодный или недоброкачественный материал, не изменит указаний о способе выполнения работы или не примет других необходимых мер для устранения обстоятельств, грозящих годности или прочности работы, подрядчик вправе отказаться от договора и потребовать возмещения причиненных его прекращением убытков.
Статья 629. Содействие заказчика
1. Заказчик обязан оказывать подрядчику содействие в выполнении работы в объеме и в порядке, предусмотренных договором подряда.
При неисполнении заказчиком этой обязанности подрядчик вправе требовать возмещения причиненных убытков, включая дополнительные издержки, вызванные простоем либо перенесением сроков исполнения работы, либо увеличением цены работы.
2. В случаях, когда исполнение работы по договору подряда стало невозможным вследствие действий или упущений заказчика, подрядчик сохраняет право на уплату ему установленной цены с учетом выполненной части работы.
Статья 630. Приемка выполненных работ заказчиком
1. Заказчик обязан в сроки и в порядке, предусмотренные договором подряда, с участием подрядчика осмотреть и принять результат выполненной работы, а при обнаружении отступлений от договора, ухудшающих работу, или иных недостатков в работе немедленно заявить подрядчику об этом.
2. Заказчик, обнаруживший недостатки в работе при ее приемке, вправе ссылаться на них только в случае, если в акте либо в ином документе, удостоверяющем приемку, были оговорены эти недостатки либо возможность последующего предъявления требования об их устранении.
3. Заказчик, принявший результаты работы без проверки, лишается права ссылаться на недостатки работы, которые могли быть установлены при обычном способе ее приемки (явные недостатки).
4. Заказчик, обнаруживший после приемки результатов работы отступления в ней от договора или иные недостатки, которые не могли быть установлены при обычном способе приемки (скрытые недостатки), в том числе такие, которые были умышленно скрыты подрядчиком, обязан известить об этом подрядчика в разумный срок по их обнаружении.
5. Предельный срок для извещения подрядчика об обнаруженных заказчиком скрытых недостатках составляет один год, а в отношении работ, связанных со зданиями и сооружениями, а также независимо от вида работ - в отношении недостатков, которые были умышленно скрыты подрядчиком, - три года со дня приемки работ.
Законодательными актами или договором могут быть установлены сроки ( гарантийные сроки) большей продолжительности.
Если в соответствии с договором работа принята заказчиком по частям, срок, установленный настоящим пунктом, начинается со дня приемки результатов работы в целом.
6. При возникновении между заказчиком и подрядчиком спора по поводу недостатков выполненной работы или их причин по требованию любой из сторон должна быть назначена экспертиза. Расходы по проведению экспертизы несет подрядчик, за исключением случаев, когда экспертизой установлено отсутствие нарушений договора или причинной связи между действиями подрядчика и обнаруженными недостатками. В этих случаях расходы по экспертизе несет сторона, потребовавшая ее назначения, а если экспертиза назначена по соглашению между сторонами, - обе стороны поровну.
7. При уклонении заказчика от принятия результатов выполненной работы подрядчик вправе по истечении одного месяца со дня, когда, согласно договору, работа должна была передаваться заказчику, и последующего двукратного
предупреждения заказчика, продать результат работы, а вырученную сумму, за вычетом всех причитающихся подрядчику платежей, внести в депозит нотариуса на имя заказчика, если иное не предусмотрено договором.
8. Если уклонение заказчика от принятия результатов выполненной работы повлекло за собой просрочку в сдаче работ, право собственности на изготовленную (переработанную) вещь признается перешедшим к заказчику в момент, когда состоялась передача.
Статья 631. Расчеты между сторонами в случае гибели предмета подряда или невозможности окончания работы
Если предмет подряда до сдачи его случайно погиб или окончание работы стало невозможно не по вине сторон, подрядчик не вправе требовать вознаграждения за работу.
Если гибель предмета подряда или невозможность окончания работы произошли вследствие недостатков материала, доставленного заказчиком, или его распоряжений о способе выполнения работы, либо произошли после наступления просрочки принятия заказчиком выполненной работы, причем подрядчиком были соблюдены правила настоящего Кодекса,статьи 628 подрядчик сохраняет право на получение вознаграждения за работу.
Статья 632. Качество работы
1. Выполненная подрядчиком работа должна соответствовать условиям договора, а при их отсутствии или неполноте - требованиям, обычно предъявляемым к работе соответствующего рода.
2. Если законодательными актами или в установленном ими порядке предусмотрены обязательные требования к работе, выполняемой по договору подряда, подрядчик, действующий в качестве предпринимателя, обязан выполнять работу, соблюдая эти обязательные требования.
Подрядчик может принять на себя по договору обязанность выполнить работу, отвечающую более высоким требованиям к качеству по сравнению с установленными обязательными требованиями.
Статья 633. Гарантия качества работы
1. В случае, когда законодательными актами или договором предусмотрено предоставление подрядчиком заказчику гарантии качества работы, подрядчик обязан передать заказчику результат работы, который должен соответствовать требованиям настоящего Кодекса в течение всего гарантийного срока.статьи 632
2. Гарантия качества результата работ, если иное не предусмотрено договором, распространяется на все элементы, составляющие результат работы.
Статья 634. Порядок исчисления гарантийного срока
Если иное не предусмотрено договором подряда, гарантийный срок начинает течь с момента, когда результаты выполненной работы были приняты или должны были быть приняты заказчиком.
Статья 635. Ответственность подрядчика за ненадлежащее качество работы
1. Если работа выполнена подрядчиком с отступлениями от договора, ухудшившими работу, или с иными недостатками, которые делают ее непригодной для предусмотренного в договоре либо - при отсутствии в договоре соответствующего условия - для обычного использования, заказчик вправе, поскольку иное не установлено законодательными актами или договором, по своему выбору потребовать от подрядчика:
1) безвозмездного устранения недостатков работы в разумный срок; 2) соразмерного уменьшения установленной за работу цены;
3) возмещения своих расходов на устранение недостатков, когда право заказчика устранять их предусмотрено в договоре.
2. Подрядчик вправе вместо устранения недостатков работы, за которые он отвечает, безвозмездно выполнить работу заново с возмещением заказчику причиненных просрочкой исполнения убытков. В этом случае заказчик обязан возвратить ранее переданные ему результаты работы подрядчику, если по характеру работы такой возврат возможен.
3. Если отступления в работе от условий договора или иные недостатки работы являются существенными и неустранимыми либо в установленный заказчиком разумный срок обнаруженные недостатки не были устранены, заказчик вправе отказаться от договора и потребовать возмещения причиненных убытков.
4. Договором может быть предусмотрено освобождение подрядчика от ответственности за определенные недостатки. Указанное условие не действует, если заказчик докажет, что недостатки возникли вследствие виновных действий или бездействия подрядчика.
5. Подрядчик, предоставивший материалы для выполнения работы, отвечает за их качество по правилам об ответственности продавца за товары ненадлежащего качества ( )- и пункта 1 статьи 428 настоящегоподпункты 1 3) 5) Кодекса).
Статья 636. Давность по искам о ненадлежащем качестве работы
Срок исковой давности для требований, вызванных ненадлежащим качеством работы, выполненной по договору подряда, начинает течь со дня обнаружения недостатков, о которых заказчик заявил в пределах срока, предусмотренного
настоящего Кодекса.статьей 630
Статья 637. Обязанность подрядчика передать информацию заказчику
Подрядчик обязан передать заказчику вместе с результатом работы информацию, касающуюся эксплуатации или иного использования предмета договора, если это предусмотрено договором или характер информации таков, что без нее невозможно использование результатов работы для целей, указанных в договоре.
Статья 638. Конфиденциальность полученной сторонами информации
Если сторона, благодаря исполнению своего обязательства по договору получила от другой стороны информацию о новых решениях и технических знаниях, в том числе и не пользующихся правовой охраной, а также сведения, которые могут рассматриваться как коммерческая тайна, она не вправе сообщать их третьим лицам без согласия другой стороны.
Порядок и условия пользования такой информацией определяются соглашением сторон.
Статья 639. Возвращение заказчику материалов и оборудования
В случаях, когда заказчик на основании пункта 4 илистатьи 627 пункта 3 статьи 635 настоящего Кодекса отказывается от договора подряда, подрядчик обязан возвратить предоставленные заказчиком материалы, оборудование, переданную для переработки вещь и иное имущество либо передать их указанному заказчиком лицу, а если это оказалось невозможным, - возместить стоимость материалов, оборудования и иного полученного от заказчика имущества.
Параграф 2. Особенности бытового подряда
Статья 640. Договор бытового подряда
По договору бытового подряда подрядчик, осуществляющий предпринимательскую деятельность, обязуется выполнить по заданию
гражданина-заказчика определенную работу, предназначенную удовлетворить бытовые или другие личные потребности заказчика, а заказчик обязуется принять результаты работы и оплатить ее.
Договор бытового подряда относится к публичным договорам (статья 387 настоящего Кодекса).
Статья 641. Гарантии прав заказчика
1. Подрядчик не вправе навязывать заказчику включение в договор бытового подряда дополнительных возмездных работ или услуг. При нарушении этого требования заказчик вправе отказаться от оплаты таких работ или услуг.
2. Заказчик вправе в любое время до сдачи ему результатов работы отказаться от договора бытового подряда, уплатив подрядчику часть установленной цены за работу, выполненную до получения уведомления об отказе заказчика от договора , и заказчик обязан возместить подрядчику расходы, произведенные до этого момента. Условия договора, лишающие заказчика этого права, ничтожны.
Сноска. Статья 641 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 642. Форма договора
Если иное не предусмотрено законодательными актами или договором, в том числе условиями формуляров или иных стандартных форм, к которым присоединяется заказчик ( настоящего Кодекса), договор бытовогостатья 389 подряда считается заключенным в надлежащей форме с момента выдачи подрядчиком заказчику квитанции или иного документа, подтверждающего заключение договора.
Отсутствие у заказчика указанных документов не лишает его права ссылаться на свидетельские показания в подтверждение факта заключения договора или его условий.
Статья 643. Представление заказчику информации о результатах работы
При сдаче результата работ заказчику подрядчик обязан сообщить ему о требованиях, которые необходимо соблюдать для эффективного и безопасного использования изготовленной или переделанной вещи либо иного результата выполненной работы, а также о возможных для самого заказчика и других лиц последствиях несоблюдения соответствующих требований.
Статья 644. Представление заказчику информации о работе
1. Подрядчик обязан до заключения договора бытового подряда представить заказчику необходимую и достоверную информацию о предлагаемых работах, их видах и особенностях, о цене и форме оплаты работы, а также сообщить заказчику по его просьбе другие относящиеся к договору и соответствующей работе сведения. Если по характеру работы это имеет значение, подрядчик должен указать заказчику конкретное лицо, которое будет ее выполнять.
2. Заказчик вправе требовать расторжения договора бытового подряда и возмещения убытков в случаях, когда вследствие неполноты или недостоверности полученной от подрядчика информации был заключен договор на выполнение работ, не обладающих свойствами, которые имел в виду заказчик.
Статья 645. Выполнение работы из материала подрядчика
1. Если работа по договору бытового подряда выполняется из материала подрядчика, материал оплачивается заказчиком при заключении договора полностью или в части, указанной в договоре, с окончательным расчетом при получении заказчиком результатов выполненной подрядчиком работы.
В соответствии с договором материал может быть предоставлен подрядчиком в кредит, в том числе с условием оплаты заказчиком материала в рассрочку.
2. Изменение цены предоставленного подрядчиком материала после заключения договора не влечет перерасчета.
Статья 646. Выполнение работы из материала заказчика
Если работа по договору бытового подряда выполняется из материала заказчика, в квитанции или ином документе, выдаваемом подрядчиком заказчику при заключении договора, должны быть указаны точное наименование, количество, описание и цена материалов, определяемая по соглашению сторон. Оценка материала в квитанции или ином аналогичном документе может быть впоследствии оспорена заказчиком в суде путем представления письменных доказательств.
Статья 647. Цена и оплата работы
Цена работы в договоре бытового подряда определяется соглашением сторон и не может быть выше указанной в прейскуранте, объявленном подрядчиком.
Работа оплачивается заказчиком после окончательной сдачи ее результатов подрядчиком. По соглашению сторон работа может быть оплачена заказчиком при заключении договора полностью или путем выдачи аванса.
Статья 648. Последствия обнаружения недостатков в выполненной работе
1. Заказчик может осуществить одно из предусмотренных в статье 635 настоящего Кодекса прав в случае, когда он обнаружил недостатки во время приемки результатов работ или во время использования предмета подряда - в течение общих сроков, предусмотренных в настоящего Кодекса, а пристатье 630 наличии гарантийных сроков - в течение этих сроков.
2. Требование о безвозмездном устранении таких недостатков работы, выполненной по договору бытового подряда, которые могут представлять опасность для жизни или здоровья самого заказчика и других лиц, может быть предъявлено заказчиком или его правопреемником в течение трех лет с момента принятия работы, если в установленном законодательными актами порядке не предусмотрены иные сроки (сроки службы). Такое требование может быть предъявлено независимо от того, когда обнаружены эти недостатки, в том числе и при обнаружении их по окончании гарантийного срока.
При невыполнении подрядчиком указанного требования заказчик вправе в течение того же срока потребовать либо возврата части цены, уплаченной за работу, либо возмещения расходов, понесенных на устранение недостатков своими силами или с помощью третьих лиц.
Статья 649. Последствия неявки заказчика за получением результатов выполненной работы
1. В случае неявки заказчика за получением результатов выполненной работы или иного уклонения заказчика от их приемки подрядчик вправе, письменно предупредив заказчика, по истечении двух месяцев со дня такого предупреждения продать предмет подряда за разумную цену, а вырученную сумму, за вычетом всех причитающихся подрядчику платежей, внести в депозит нотариуса на имя заказчика, в соответствии со настоящего Кодекса.статьей 291
2. В указанных в пункте 1 настоящей статьи случаях подрядчик может вместо продажи предмета подряда воспользоваться правом на его удержание (статья 624 настоящего Кодекса) или взыскать с заказчика причиненные убытки.
Статья 650. Последствия смерти одной из сторон в договоре
В случаях прекращения договора бытового подряда по основанию смерти одной из сторон ( настоящего Кодекса) последствия прекращениястатья 376 договора определяются по соглашению между правопреемником соответствующей стороны и ее контрагентом, а при недостижении ими соглашения - судом с учетом размера выполненных работ и их цены, стоимости истраченного и сохранившегося материала, а также других существенных обстоятельств.
Параграф 3. Особенности строительного подряда
Статья 651. Договор строительного подряда
1. По договору строительного подряда подрядчик обязуется в установленный договором срок построить по заданию заказчика определенный объект либо выполнить иную строительную работу, а заказчик обязуется создать подрядчику необходимые условия для выполнения работы, принять ее результат и уплатить за нее обусловленную цену.
2. Договор строительного подряда заключается на строительство или реконструкцию предприятия, здания (в том числе жилого дома), сооружения или иного объекта, а также на выполнение монтажных, пусконаладочных и иных, неразрывно связанных со строящимся объектом, работ. Правила настоящего параграфа применяются также при капитальном ремонте зданий и сооружений, если иное не предусмотрено договором.
Если это предусмотрено договором, подрядчик принимает на себя обязанность обеспечить эксплуатацию объекта после его принятия заказчиком в течение указанного в договоре срока.
3. При договоре о строительстве "под ключ" подрядчик принимает на себя все обязанности по строительству и его обеспечению и должен сдать заказчику объект, готовый к эксплуатации, согласно договорным условиям.
4. Собственником незавершенного строительства до его сдачи заказчику и оплаты работ является подрядчик (за исключением объектов долевого жилищного строительства).
5. В случаях, когда по договору строительного подряда выполняются работы для удовлетворения бытовых или других личных потребностей гражданина ( заказчика), к такому договору соответственно применяются правила о правах заказчика по договору бытового подряда.
Сноска. Статья 651 с изменением, внесенным Законом РК от 07.04.2016 № 487-V (вводится в действие по истечении шести месяцев после дня его первого
официального опубликования).
Статья 652. Распределение риска по договору строительного подряда
1. При разрушении или повреждении объекта строительства вследствие непреодолимой силы до истечения установленного договором срока сдачи работ заказчик обязан, если иное не предусмотрено договором, оплатить стоимость выполненных и (или) восстановительных работ.
2. Если иное не предусмотрено законодательными актами или договором, риск случайно наступившей невозможности исполнения работ до их сдачи несет заказчик.
3. Риск случайного удорожания работ несет подрядчик. 4. Договором может быть предусмотрено перенесение на подрядчика всех
возможных строительных рисков (строительство "под ключ"). 5. Договором может быть предусмотрено страхование рисков подрядчика. В
этом случае расходы по страхованию включаются в издержки по строительству, учитываемые при определении вознаграждения за выполненные работы.
Статья 653. Ответственность за безопасность проводимых работ
Ответственность за безопасность проводимых работ несет подрядчик.
Статья 654. Проектно-сметная документация
1. Подрядчик обязан осуществлять строительство и связанные с ним работы в соответствии с проектной документацией, определяющей объем и содержание работ и другие предъявляемые к работам требования, и сметой, определяющей цену работ.
При отсутствии иных указаний в договоре предполагается, что подрядчик обязан выполнить все работы, указанные в проектной документации и в смете ( проектно-сметной документации).
2. Если иное не предусмотрено договором, проектно-сметная и другая техническая документация, составленная на иностранном языке, передается подрядчику переведенной на государственный или русский язык. Единицы измерения должны соответствовать метрической системе, установленной законодательными актами.
3. Договором строительного подряда должны быть определены состав и содержание проектно-сметной документации, а также должно быть
предусмотрено, какая из сторон и в какой срок должна предоставить соответствующую документацию.
4. Подрядчик, обнаруживший в ходе строительства не учтенные проектно-сметной документацией работы и в связи с этим необходимость дополнительных работ и увеличения сметной стоимости строительства, обязан сообщить об этом заказчику.
При неполучении от заказчика ответа на свое сообщение в течение десяти дней, если законодательными актами или договором не предусмотрен для этого иной срок, подрядчик может приостановить соответствующие работы с отнесением убытков, вызванных простоем, на счет заказчика.
5. Подрядчик, не выполнивший обязанности, установленные пунктом 4 настоящей статьи, лишается права требовать от заказчика оплаты выполненных им дополнительных работ и возмещения вызванных этим убытков, если не докажет необходимости немедленных действий в интересах заказчика, в частности, в связи с тем, что приостановление работы могло привести к гибели или повреждению строящегося объекта.
6. При согласии заказчика на дополнительные работы и их оплату подрядчик вправе отказаться от выполнения указанных работ лишь в случаях, когда они не входят в сферу профессиональной деятельности подрядчика либо не могут быть выполнены подрядчиком по не зависящим от него причинам.
Статья 655. Внесение изменений в проектно-сметную документацию
1. Заказчик вправе требовать внесения изменений в проектно- сметную документацию, не связанных с дополнительными расходами для подрядчика и ( или) удлинением сроков выполнения работ.
2. Изменения проектно-сметной документации, требующие дополнительных расходов для подрядчика, осуществляются за счет заказчика на основе согласованной сторонами дополнительной сметы.
3. Подрядчик вправе требовать пересмотра сметы, если по не зависящим от него причинам стоимость работ превысила смету не менее чем на десять процентов.
4. Подрядчик вправе требовать возмещения разумных расходов, понесенных им в связи с установлением и устранением дефектов в проектно-сметной документации, кроме случаев, когда такая документация составлялась по его заказу.
Статья 656. Материальное обеспечение работ
1. Обязанности по обеспечению строительства материалами, включая детали и конструкции, а также оборудованием несет подрядчик, если договором не предусмотрено, что материальное обеспечение строительства в целом или в определенной части осуществляет заказчик.
2. Подрядчик, в обязанность которого входит материальное обеспечение строительства, несет риск обнаружившейся невозможности использования без ухудшения качества выполняемых работ, предоставленных подрядчиком материалов (деталей, конструкций) или оборудования.
3. В случаях обнаружившейся невозможности использования без ухудшения качества выполняемых работ предоставленных заказчиком материалов (деталей, конструкций) или оборудования, подрядчик обязан потребовать замены их заказчиком в разумный срок, а при неисполнении этого требования подрядчик вправе отказаться от договора и потребовать от заказчика уплаты цены договора пропорционально выполненной части работ, а также возмещения убытков, не покрытых этой суммой.
Статья 657. Оплата работ
1. Оплата выполненных работ производится заказчиком в размере, предусмотренном сметой, в сроки и в порядке, установленные законодательными актами или договором. При отсутствии соответствующих указаний в законодательных актах или договоре оплата выполненных подрядчиком работ производится в соответствии со настоящего Кодекса.статьей 623
2. При строительстве "под ключ" указанная в договоре цена выплачивается, если иное не предусмотрено соглашением сторон, в полном объеме после приемки объекта заказчиком.
Статья 658. Предоставление земельного участка для строительства
Заказчик обязан своевременно предоставить для строительства земельный участок такой площади и в таком состоянии, какие указаны в договоре. При отсутствии в договоре таких указаний площадь и состояние земельного участка должны обеспечивать своевременное начало работ, нормальное их ведение и завершение в срок.
Статья 659. Дополнительные обязанности заказчика в договоре строительного подряда
Заказчик обязан в случаях и в порядке, предусмотренных договором строительного подряда, передавать подрядчику в пользование необходимые для
осуществления работ здания и сооружения, обеспечивать транспортировку грузов в адрес подрядчика, временную подводку сетей энергоснабжения, водо- и паропровода, оказывать другие услуги. Оплата производится на условиях, предусмотренных договором.
Статья 660. Контроль и надзор заказчика за выполнением работ по договору
1. Заказчик в договоре строительного подряда вправе осуществлять контроль и надзор за ходом и качеством выполняемых работ, соблюдением сроков их выполнения (графика), качеством предоставленных подрядчиком материалов, а также правильностью использования подрядчиком материалов заказчика, не вмешиваясь при этом в оперативно-хозяйственную деятельность подрядчика.
2. Заказчик, обнаруживший при осуществлении контроля и надзора за выполнением работ отступления от условий договора, которые могут ухудшить качество работы, или иные недостатки в ней, обязан немедленно заявить об этом подрядчику. Заказчик, не сделавший такого заявления, теряет право в дальнейшем ссылаться на обнаруженные им недостатки.
3. Подрядчик обязан исполнять полученные в ходе строительства указания заказчика, если такие указания не противоречат условиям договора и не представляют собой вмешательства в оперативно-хозяйственную деятельность подрядчика.
4. Подрядчик, ненадлежащим образом выполнивший работы, не вправе ссылаться на то, что заказчик не осуществлял контроль и надзор за их выполнением, кроме случаев, когда обязанность осуществлять такой контроль и надзор возложена на заказчика законодательными актами или договором.
Статья 661. Обязанности подрядчика по охране окружающей среды и безопасности ведения строительных работ
Подрядчик не вправе использовать в ходе осуществления работ материалы ( детали, конструкции) и оборудование, предоставленные заказчиком, или выполнять его указания, если это может привести к нарушению обязательных для сторон требований об охране окружающей среды и безопасности ведения строительных работ.
Статья 662. Обязанности сторон при консервации строительства
Если по не зависящим от сторон причинам работы по договору строительного подряда приостановлены и объект строительства законсервирован, заказчик
обязан оплатить подрядчику в полном объеме выполненные до момента консервации работы, а также возместить расходы, вызванные необходимостью прекращения работ и консервацией строительства.
Статья 663. Сдача и приемка результатов работ
1. Заказчик, получивший сообщение подрядчика о готовности к сдаче работ, выполненных по договору строительного подряда либо, если это предусмотрено договором, - этапа работ, обязан немедленно приступить к приемке их результатов.
2. Заказчик организует и осуществляет приемку результатов работ за свой счет, если иное не предусмотрено договором. В предусмотренных законодательными актами случаях в приемке результатов работ должны участвовать представители государственных органов и органов местного самоуправления.
3. Заказчик, предварительно принявший отдельные этапы работ, несет риск их гибели или повреждения не по вине подрядчика, в том числе и в случаях, когда договором предусмотрено выполнение работ за риск подрядчика.
4. Сдача результатов работ подрядчиком и приемка их заказчиком оформляются актом, подписанным обеими сторонами, а в случаях, предусмотренных законодательными актами, - также представителями государственных органов и органов местного самоуправления. При отказе одной из сторон от подписания акта в нем делается отметка об этом и акт подписывается другой стороной.
Односторонний акт сдачи или приемки результатов работ может быть признан судом действительным лишь в случае, если мотивы отказа от подписания акта признаны судом необоснованными.
5. В случаях, когда это предусмотрено законодательными актами или договором либо вытекает из характера работы, выполняемой по договору строительного подряда, приемке ее результатов должны предшествовать предварительные испытания. В этих случаях приемка результатов работы может осуществляться только при положительном результате предварительных испытаний.
6. Заказчик вправе отказаться от приемки результатов работы в случае обнаружения недостатков, которые исключают возможность использования результатов работы для указанной в договоре цели и не могут быть устранены подрядчиком, заказчиком или третьим лицом.
При обнаружении во время приемки иных недостатков о них должно быть указано в акте, предусмотренном пунктом 4 настоящей статьи.
7. В случаях, предусмотренных законодательными актами, построенные объекты должны приниматься заказчиком.
В случае принятия в эксплуатацию некачественно построенных объектов заказчик несет ответственность, установленную законами Республики Казахстан.
Сноска. Статья 663 с изменением, внесенным Законом РК от 29.12.2014 № 269-V (вводится в действие с 01.01.2015).
Статья 664. Ответственность подрядчика за качество работ
Подрядчик несет ответственность перед заказчиком за допущенные отступления от требований, предусмотренных договором, проектом и обязательными для сторон строительными нормами и правилами, а также за недостижение указанных в проектно-сметной документации показателей объекта строительства, в том числе таких, как производственная мощность предприятия.
При реконструкции (обновлении, перестройке, реставрации и т.п.) здания или сооружения на подрядчика возлагается ответственность за снижение или потерю прочности, устойчивости, надежности здания, сооружения или его части.
Статья 665. Гарантии качества в договоре строительного подряда
1. Подрядчик, если иное не предусмотрено договором строительного подряда, гарантирует достижение объектом строительства указанных в проектно-сметной документации показателей и возможность эксплуатации объекта в соответствии с договором на протяжении гарантийного срока. Гарантийный срок составляет десять лет со дня принятия объекта заказчиком, если иной гарантийный срок не предусмотрен законодательными актами или договором.
2. Подрядчик несет ответственность за недостатки, обнаруженные в пределах гарантийного срока, если не докажет, что они возникли вследствие нормального износа объекта или его частей, неправильной его эксплуатации или неправильности инструкций по его эксплуатации, разработанных самим заказчиком или привлеченными им третьими лицами, ненадлежащего ремонта объекта, произведенного самим заказчиком или привлеченными им третьими лицами.
3. Течение гарантийного срока приостанавливается на все время, на протяжении которого объект не мог эксплуатироваться вследствие недостатков ( дефектов или недоделок), за которые отвечает подрядчик.
4. При обнаружении в течение гарантийного срока недостатков, указанных в пункте 4 настоящего Кодекса, заказчик должен заявить о нихстатьи 630 подрядчику в разумный срок по их обнаружении.
5. Договором строительного подряда может быть предусмотрено право заказчика удержать предусмотренную в договоре часть указанной в смете цены работ до завершения гарантийного срока.
Статья 666. Устранение недостатков за счет заказчика
1. Договором строительного подряда может быть предусмотрена обязанность подрядчика устранить по требованию заказчика и за счет заказчика недостатки ( дефекты и недоделки), за которые подрядчик не несет ответственности.
2. Подрядчик вправе отказаться от выполнения указанных в пункте 1 настоящей статьи работ в случаях, когда они не связаны непосредственно с предметом договора либо не могут быть выполнены подрядчиком по не зависящим от него причинам.
Параграф 4. Особенности подряда на проектные и изыскательские работы
Статья 667. Договор подряда на проектные и изыскательские работы
1. По договору подряда на проектные и изыскательские работы подрядчик ( проектировщик, изыскатель) обязуется по заданию заказчика разработать проектно-сметную документацию и (или) выполнить изыскательские работы, а заказчик обязуется их принять и оплатить.
2. Если иное не предусмотрено законодательными актами или договором на проектные и (или) изыскательские работы, риск случайной невозможности исполнения договора на проектные и изыскательские работы лежит на заказчике.
Статья 668. Исходные данные для проектных и изыскательских работ
1. По договору подряда на проектные и изыскательские работы заказчик обязан передать подрядчику задание на проектирование, а также иные исходные данные, необходимые для составления проектно-сметной документации. Задание на проектирование по поручению заказчика может быть подготовлено подрядчиком. В этом случае задание становится обязательным для сторон с момента его утверждения заказчиком.
2. Подрядчик обязан соблюдать требования, содержащиеся в задании и других исходных данных для проектирования и выполнения изыскательских работ, и вправе отступить от них только с согласия заказчика.
Статья 669. Обязанности заказчика
По договору подряда на проектные и изыскательские работы заказчик обязан, если иное не предусмотрено договором:
1) уплатить подрядчику установленную цену после завершения всех работ или уплачивать ее частями после завершения отдельных этапов работ;
2) использовать проектно-сметную документацию, полученную от подрядчика, только на цели, предусмотренные договором, не передавать проектно-сметную документацию третьим лицам и не разглашать содержащиеся в ней данные без согласия подрядчика;
3) оказывать услуги подрядчику в выполнении проектных и изыскательских работ в объеме и на условиях, предусмотренных в договоре;
4) участвовать вместе с подрядчиком в согласовании готовой проектно- сметной документации с компетентными государственными органами и органами местного самоуправления;
5) возместить подрядчику дополнительные расходы, вызванные изменением исходных данных для проектирования и изыскательских работ вследствие обстоятельств, не зависящих от подрядчика;
6) привлечь подрядчика к участию в деле по иску, предъявленному к заказчику третьим лицом в связи с недостатками составленной проектной документации или выполненных изыскательских работ.
Статья 670. Обязанности подрядчика
По договору подряда на проектные и изыскательские работы подрядчик обязан:
1) выполнять работы в соответствии с переданными ему при заключении договора исходными данными на проектирование;
2) согласовывать с заказчиком готовую проектно-сметную документацию, а при необходимости, вместе с заказчиком, - с компетентными государственными органами и органами местного самоуправления;
3) если иное не предусмотрено договором, передать заказчику готовую проектно-сметную документацию и результаты изыскательских работ одновременно;
4) не передавать проектно-сметную документацию третьим лицам без согласия заказчика.
Статья 671. Гарантии подрядчика
Подрядчик по договору подряда на проектные и изыскательские работы гарантирует заказчику отсутствие у третьих лиц права воспрепятствовать или
ограничивать выполнение работ на основе подготовленной подрядчиком проектно-сметной документации.
Статья 672. Ответственность подрядчика за недостатки проектно-сметной документации и изыскательских работ
1. Подрядчик по договору подряда на проектные и изыскательские работы несет ответственность за недостатки проектно-сметной документации и изыскательских работ, включая недостатки, обнаруженные впоследствии в ходе строительства, а также в процессе эксплуатации объекта, созданного на основе выполненной проектно-сметной документации и данных изыскательских работ.
2. При обнаружении недостатков в проектно-сметной документации или в изыскательских работах подрядчик по требованию заказчика обязан безвозмездно переделать проектно-сметную документацию и соответственно произвести необходимые дополнительные изыскательские работы, а также возместить заказчику причиненные убытки, если законодательными актами или договором не установлено иное.
3. Требования, вытекающие из недостатков проектной документации, могут быть предъявлены лицом, использующим проектную документацию, хотя бы оно не являлось заказчиком по ее изготовлению.
Параграф 5. Особенности подряда на научно-исследовательские, опытно-конструкторские и технологические работы
Статья 673. Договоры на научно-исследовательские, опытно-конструкторские и технологические работы
1. По договору на научно-исследовательские работы подрядчик (исполнитель ) обязуется провести обусловленные заданием заказчика научные исследования, а по договору на опытно-конструкторские и технологические работы - разработать образец нового изделия, конструкторскую документацию на него, новую технологию или изготовить образец; заказчик обязуется выдать подрядчику (исполнителю) техническое задание, принять результаты работы и оплатить их.
2. Договор с подрядчиком (исполнителем) может охватывать как весь цикл проведения исследования, разработки и изготовления образцов, так и отдельные их элементы.
Статья 674. Выполнение работ
1. Подрядчик (исполнитель) обязан произвести научные исследования лично. Если иное не предусмотрено договором, он вправе привлекать к исполнению договора на научно-исследовательские работы третьих лиц только с согласия заказчика.
2. При выполнении опытно-конструкторских и технологических работ подрядчик вправе, если иное не предусмотрено договором, привлекать к их исполнению третьих лиц в качестве субподрядчиков.
Статья 675. Сдача, приемка и оплата работ
Подрядчик (исполнитель) обязан сдать, а заказчик принять и оплатить полностью завершенные научно-исследовательские, опытно-конструкторские и технологические работы. Договором могут быть предусмотрены принятие и оплата отдельных этапов работ либо иной способ оплаты.
Статья 676. Конфиденциальность сведений о договоре
Если иное не предусмотрено договором на научно-исследовательские работы либо на опытно-конструкторские и технологические работы:
1) как подрядчик (исполнитель), так и заказчик обязаны обеспечить конфиденциальность сведений, касающихся предмета договора, хода его исполнения и полученных результатов. Объем сведений, признаваемых конфиденциальными, определяется в договоре;
2) подрядчик вправе осуществлять патентование результатов работ, полученных по указанным договорам, только с согласия заказчика.
Статья 677. Права сторон на результаты работ
1. Заказчик по договору на научно-исследовательские работы либо на опытно-конструкторские и технологические работы имеет право использовать переданные ему результаты работ в пределах и на условиях, предусмотренных договором.
2. Если иное не предусмотрено договором, подрядчик (исполнитель) вправе использовать полученный им результат работ для себя.
3. Договором может быть предусмотрено право подрядчика (исполнителя) реализовывать результаты работ третьим лицам.
Статья 678. Обязанности заказчика
Заказчик по договору на научно-исследовательские работы либо на опытно-конструкторские и технологические работы обязан:
1) выдать подрядчику (исполнителю) техническое задание и согласовать с ним программу (технико-экономические параметры) или тематику работ;
2) передавать подрядчику (исполнителю) необходимую для выполнения работ информацию;
3) принять результаты выполненных работ и оплатить их (статья 623 настоящего Кодекса).
Статья 679. Обязанности подрядчика (исполнителя)
1. Подрядчик (исполнитель) по договору на научно-исследовательские работы либо на опытно-конструкторские и технологические работы обязан:
1) выполнить работы в соответствии с согласованной с заказчиком программой (технико-экономическими параметрами) или тематикой и передать заказчику результат в предусмотренный договором срок;
2) соблюдать требования, связанные с правовой охраной интеллектуальной собственности;
3) своими силами и за свой счет устранять допущенные по его вине недостатки в технической документации, которые могут повлечь отступления от технико-экономических параметров, предусмотренных в техническом задании заказчика или в договоре;
4) незамедлительно информировать заказчика об обнаруженной невозможности получить ожидаемые результаты или нецелесообразности продолжения работы;
5) гарантировать заказчику отсутствие у третьих лиц исключительных прав на переданные на основании такого договора результаты.
2. Если иное не предусмотрено договорами на научно-исследовательские либо на опытно-конструкторские и технологические работы, подрядчик ( исполнитель) обязан:
1) воздерживаться от публикации без согласия заказчика научно- технических результатов, полученных при выполнении работ;
2) принимать меры для защиты полученных при выполнении работ способных к правовой охране результатов и информировать об этом заказчика;
3) предоставить заказчику исключительную лицензию на использование обладающих правовой защитой научно-технических результатов, примененных в выполненных работах.
Статья 680. Последствия невозможности достижения результата в договоре на научно-исследовательские работы
Если в ходе научно-исследовательских работ обнаруживается невозможность достижения результата вследствие обстоятельств, не
зависящих от подрядчика (исполнителя), заказчик обязан оплатить стоимость работ, проведенных до выявления невозможности получения предусмотренных договором результатов, но не свыше соответствующей части цены работ, указанной в договоре.
Статья 681. Последствия невозможности достижения результата в договоре на опытно-конструкторские и технологические работы
Если в ходе выполнения опытно-конструкторских и технологических работ обнаруживается возникшая не по вине подрядчика невозможность или нецелесообразность продолжения работ, заказчик обязан оплатить понесенные исполнителем затраты.
Статья 682. Ответственность подрядчика (исполнителя) за нарушение договора
1. Подрядчик (исполнитель) несет ответственность перед заказчиком за неисполнение и ненадлежащее исполнение договора на научно-исследовательские работы либо на опытно-конструкторские и технологические работы, если не докажет, что нарушение договора произошло не по вине подрядчика (исполнителя).
2. Подрядчик (исполнитель), нарушивший договор, обязан возместить убытки заказчика в виде реального ущерба, если договором не предусмотрено иное.
Глава 33. Возмездное оказание услуг
Статья 683. Договор возмездного оказания услуг
1. По договору возмездного оказания услуг исполнитель обязуется по заданию заказчика оказать услуги (совершить определенные действия или осуществить определенную деятельность), а заказчик обязуется оплатить эти услуги.
2. Правила настоящей главы применяются к договорам оказания услуг связи, медицинских, ветеринарных, аудиторских, консультационных, информационных услуг, услуг по обучению, туристическому обслуживанию и иных, за
исключением услуг, оказываемых по договорам, предусмотренным ,главами 32 , , , , , настоящего Кодекса.34 35 39 41 43 44
Статья 684. Исполнение договора возмездного оказания услуг
Если иное не предусмотрено договором возмездного оказания услуг, исполнитель обязан оказать услуги лично.
Статья 685. Оплата услуг
1. Заказчик обязан оплатить оказанные ему услуги в сроки и в порядке, которые указаны в договоре возмездного оказания услуг.
2. В случае невозможности исполнения, возникшей по вине заказчика, услуги подлежат оплате в полном объеме, если иное не предусмотрено законодательными актами или договором возмездного оказания услуг.
3. В случае, когда невозможность исполнения возникла по обстоятельствам, за которые ни одна из сторон не отвечает, заказчик возмещает исполнителю фактически понесенные им расходы, если иное не предусмотрено законодательными актами или договором.
Статья 686. Односторонний отказ от исполнения договора возмездного оказания услуг
1. Заказчик вправе отказаться от исполнения договора возмездного оказания услуг при условии оплаты исполнителю фактически понесенных им расходов.
2. Исполнитель вправе отказаться от исполнения обязательств по договору возмездного оказания услуг лишь при условии полного возмещения заказчику убытков, причиненных расторжением договора, кроме случая, когда это произошло по вине заказчика.
Статья 687. Правовое регулирование договора возмездного оказания услуг
Общие положения о подряде ( - настоящего Кодекса) истатьи 616 639 положения о бытовом подряде ( - настоящего Кодекса)статьи 640 650 применяются к договору возмездного оказания услуг, если это не противоречит
- настоящего Кодекса, а также особенностям предмета договорастатьям 683 686 возмездного оказания услуг.
Глава 34. Перевозка
Статья 688. Общие положения
1. Перевозка грузов, пассажиров и багажа производится на основании договора перевозки.
2. Общие условия перевозки определяются законодательными актами о транспорте, иными законодательными актами и изданными в соответствии с ними правилами.
Условия перевозки грузов, пассажиров и багажа отдельными видами транспорта определяются соглашением сторон, если настоящим Кодексом, законодательными актами о транспорте, иными законодательными актами и изданными в соответствии с ними правилами не установлено иное.
Статья 689. Договор перевозки груза
1. По договору перевозки груза одна сторона (перевозчик) обязуется доставить вверенный ему другой стороной (отправителем) груз в пункт назначения и выдать уполномоченному на получение груза лицу (получателю), а отправитель обязуется уплатить за перевозку груза плату, согласно договору или тарифу.
2. Договор перевозки груза оформляется составлением транспортной накладной, коносамента, товарно-транспортной накладной или иного документа на груз, предусмотренного законодательными актами о транспорте.
Статья 690. Договор перевозки пассажира
1. По договору перевозки пассажира перевозчик обязуется перевезти пассажира в пункт назначения, а в случае сдачи пассажиром багажа - также доставить багаж в пункт назначения и выдать уполномоченному на получение багажа лицу; пассажир обязуется уплатить плату за проезд, а при сдаче багажа - и за провоз багажа.
2. Договор перевозки пассажира и багажа оформляется соответственно проездным билетом и багажной квитанцией. Форма проездного билета и багажной квитанции, устанавливается в порядке, предусмотренном законодательными актами о транспорте.
Статья 691. Договор фрахтования (чартера)
По договору фрахтования (чартера) одна сторона (фрахтовщик) обязуется предоставить другой стороне (фрахтователю) за плату всю или часть
вместимости одного или нескольких транспортных средств на один или несколько рейсов для перевозки пассажиров, багажа и грузов.
Порядок заключения договора фрахтования, а также форма договора и его виды устанавливаются законодательными актами о транспорте.
Статья 692. Договоры об организации перевозок
Перевозчик и грузоотправитель при необходимости осуществления систематических перевозок могут заключать длительные договоры об организации перевозок.
По договору об организации перевозок грузов перевозчик обязуется в установленные сроки принимать, а грузоотправитель - предъявлять к перевозке грузы в обусловленном объеме.
В договоре об организации перевозок определяются объемы, сроки, качество перевозок и другие условия предоставления транспортных средств и предъявления грузов для перевозки, а также иные условия организации перевозки, не предусмотренные законодательными актами.
Статья 693. Договоры между транспортными организациями
Между организациями различных видов транспорта могут заключаться договоры об организации работы по обеспечению перевозок грузов (узловые соглашения, договоры на централизованный завоз (вывоз) грузов и другие).
Порядок заключения таких договоров определяется законодательными актами о транспорте.
Статья 694. Смешанные перевозки
Взаимоотношения при перевозке двумя или более видами транспорта ( смешанные перевозки) по единой товарно-транспортной накладной (единому коносаменту), а также порядок организации этих перевозок определяются договорами между участниками смешанной перевозки, заключаемыми в соответствии с законодательными актами Республики Казахстан о транспорте.
Сноска. Статья 694 в редакции Закона РК от 27.10.2015 № 363-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 695. Перевозка транспортом общего пользования
1. Перевозка, осуществляемая коммерческой организацией, признается перевозкой транспортом общего пользования, если из законодательных актов,
иных нормативных правовых актов или выданной этой организации лицензии ( патента) вытекает, что эта организация обязана осуществлять перевозки пассажиров, грузов и (или) багажа по обращению любого гражданина или юридического лица.
2. Договор перевозки транспортом общего пользования является публичным договором ( настоящего Кодекса).статья 387
Статья 696. Подача транспортных средств, погрузка (разгрузка) груза
1. Перевозчик обязан подать отправителю груза под погрузку в срок, установленный принятой заявкой (заказом), договором перевозки, исправные транспортные средства в состоянии, пригодном для перевозки соответствующего груза.
Отправитель груза вправе отказаться от поданных транспортных средств, непригодных для перевозки соответствующего груза.
2. Погрузка (разгрузка) груза осуществляется транспортной организацией или отправителем (получателем) в порядке и сроки, предусмотренные договором, с соблюдением требований, установленных законодательными актами о транспорте и изданными в соответствии с ними правилами.
3. Погрузка (разгрузка) груза, осуществляемая силами и средствами отправителя (получателя) груза, должна производиться в сроки, предусмотренные договором, если такие сроки не установлены законодательными актами о транспорте и изданными в соответствии с ними правилами.
Статья 697. Провозная плата
1. За перевозку грузов, пассажиров и багажа взимается плата, установленная соглашением сторон, если иное не предусмотрено законодательными актами.
2. Плата за перевозку грузов, пассажиров и багажа транспортом общего пользования определяется на основании тарифов, утверждаемых в порядке, установленном законодательными актами о транспорте.
3. Работы и услуги, выполняемые по требованию грузовладельцев и не предусмотренные тарифами, оплачиваются по соглашению сторон.
4. Перевозчик имеет право удерживать переданные ему для перевозки грузы и багаж в обеспечение причитающейся ему провозной платы и других платежей по перевозке ( настоящего Кодекса), если иное не установленостатья 292 законодательством, договором перевозки или не вытекает из существа обязательства.
Статья 698. Срок доставки груза, пассажира и (или) багажа
Перевозчик обязан доставить груз, пассажира и (или) багаж в пункт назначения в срок, определенный законодательными актами о транспорте и установленными в соответствии с ними правилами перевозки. Если срок доставки груза, пассажира или багажа не установлен и стороны не предусмотрели этот срок в договоре, доставка должна быть произведена в разумный срок.
Статья 699. Право по распоряжению грузом
1. Грузоотправитель или владелец распорядительного документа на груз могут потребовать от перевозчика прекращения перевозки или возвращения груза либо сделать другое распоряжение. В этом случае перевозчик вправе требовать оплаты за уже произведенную перевозку, а также возмещения понесенных им расходов в связи со сделанным распоряжением.
2. Грузоотправитель теряет указанные в предыдущем пункте права в момент передачи груза грузополучателю после прибытия груза в место назначения.
3. При уклонении грузополучателя от исполнения обязательств по получению груза, требующего особых условий хранения (скоропортящегося), в отсутствие указаний грузоотправителя о том, как распорядиться таким грузом, когда хранение его невозможно и может привести к его порче, перевозчик имеет право реализовать груз.
Сумма, вырученная от реализации груза, вносится на условиях депозита на имя нотариуса за вычетом суммы, причитающейся перевозчику.
Сноска. В статью 699 внесены изменения - Законом РК от 6 декабря 2001 г. N 260.
Статья 700. Права пассажиров
Пассажир имеет право в порядке, предусмотренном законодательными актами о транспорте:
1) перевозить с собой детей бесплатно или на иных льготных условиях; 2) провозить с собой бесплатно ручную кладь в пределах установленных
норм; 3) сдавать к перевозке багаж за плату по тарифу.
Статья 701. Ответственность за нарушение обязательств по перевозке
1. В случае неисполнения или ненадлежащего исполнения обязательств по перевозке стороны несут ответственность, установленную настоящим Кодексом, законодательными актами о транспорте, иными законодательными актами, а также соглашением сторон.
2. Соглашения транспортных организаций с пассажирами и грузоотправителями (грузополучателями) об ограничении или устранении установленной законодательными актами ответственности ничтожны, за исключением случаев, когда возможность таких соглашений при перевозках груза предусмотрена законодательными актами о транспорте.
Сноска. Статья 701 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 702. Ответственность перевозчика за неподачу транспортных средств и отправителя за неиспользование поданных транспортных средств
1. Перевозчик за неподачу транспортных средств для перевозки груза в соответствии с принятой заявкой (заказом) или иным договором, а отправитель за непредъявление груза либо неиспользование поданных транспортных средств по иным причинам несут ответственность, установленную законодательными актами, а также соглашением сторон.
2. Перевозчик и отправитель груза освобождаются от ответственности в случае неподачи или несвоевременной подачи транспортных средств либо неиспользования транспортных средств, если это произошло вследствие:
1) непреодолимой силы; 2) прекращения или ограничения перевозки грузов в определенных
направлениях, установленных в порядке, предусмотренном законодательными актами о транспорте;
3) в иных случаях, предусмотренных законодательными актами.
Статья 703. Ответственность перевозчика при прямом смешанном сообщении
За утрату, порчу, повреждение, недостачу груза перевозчики в прямом смешанном сообщении отвечают перед грузоотправителем (грузополучателем) солидарно.
Ответственность за просрочку несет последний перевозчик, если не докажет, что просрочка произошла не по вине перевозчиков.
Статья 704. Ответственность перевозчика за задержку отправления пассажира
1. За задержку отправления транспортного средства, перевозящего пассажира , или опоздание такого транспортного средства в пункт назначения (за исключением перевозок в городском и пригородном сообщениях) перевозчик уплачивает пассажиру штраф в размере, установленном законодательными актами о транспорте, если не докажет, что задержка или опоздание имели место вследствие непреодолимой силы.
2. В случае отказа пассажира от перевозки из-за задержки отправления транспортного средства перевозчик обязан возвратить пассажиру провозную плату в полном размере, а также возместить пассажиру понесенные им убытки в связи с такой задержкой.
Статья 705. Ответственность перевозчика за утрату, недостачу и повреждение (порчу) груза или багажа
1. Перевозчик обеспечивает сохранность груза или багажа с момента принятия их к перевозке и до выдачи получателю, уполномоченному им лицу или лицу, уполномоченному на получение багажа.
2. Перевозчик отвечает за утрату груза или багажа, если не докажет, что утрата, недостача или повреждение (порча) груза или багажа произошли не по его вине.
3. Ущерб, причиненный при перевозке груза или багажа, возмещается перевозчиком:
1) в случае утраты или недостачи груза или багажа - в размере стоимости утраченного или недостающего груза или багажа;
2) в случае повреждения (порчи) груза или багажа - в размере суммы, на которую понизилась его стоимость, а при невозможности восстановления поврежденного груза или багажа - в размере его стоимости;
3) в случае утраты груза или багажа, сданного к перевозке с объявлением его ценности, - в размере объявленной стоимости груза или багажа.
Стоимость груза или багажа определяется, исходя из его цены, указанной в счете продавца или предусмотренной договором, а при отсутствии счета или указания цены в договоре - исходя из цены, которая при сравнимых обстоятельствах обычно взимается за аналогичные товары.
4. Перевозчик наряду с возмещением установленного ущерба, вызванного утратой, недостачей или повреждением (порчей) груза или багажа, возвращает отправителю (получателю) провозную плату, взысканную за перевозку
утраченного, недостающего, испорченного или поврежденного груза или багажа, если эта плата не входит в стоимость груза.
5. Документы о причинах несохранности груза или багажа (коммерческий акт , акт общей формы и т.п.), составленные перевозчиком в одностороннем порядке, подлежат в случае спора оценке судом наряду с другими документами, удостоверяющими обстоятельства, которые могут служить основанием для ответственности перевозчика, отправителя либо получателя груза или багажа.
Статья 706. Претензии и иски по перевозкам грузов
1. До предъявления к перевозчику иска, вытекающего из перевозки груза, обязательно предъявление ему претензии в порядке, предусмотренном законодательными актами.
2. Срок исковой давности по требованиям, вытекающим из перевозки груза, устанавливается в один год.
3. Правила настоящей статьи не распространяются на требования, вытекающие из перевозки пассажира и багажа.
Статья 707. Ответственность перевозчика за причинение вреда жизни или здоровью пассажира
Ответственность перевозчика по обязательствам, возникающим вследствие причинения вреда жизни или здоровью пассажира, определяется по правилам
настоящего Кодекса, если законодательными актами или договоромглавы 47 перевозки не предусмотрена повышенная ответственность перевозчика.
Глава 35. Транспортная экспедиция
Статья 708. Договор транспортной экспедиции
1. По договору транспортной экспедиции одна сторона (экспедитор) обязуется за вознаграждение и за счет другой стороны (клиента - отправителя груза, получателя груза или иного заинтересованного в услугах экспедитора лица ) выполнить или организовать выполнение определенных договором экспедиции услуг, связанных с перевозкой груза, в том числе заключить от имени клиента или от своего имени договор (договоры) перевозки груза.
В качестве дополнительных услуг договором транспортной экспедиции может быть предусмотрено осуществление таких необходимых для доставки груза операций, как получение требующихся для экспорта или импорта документов, выполнение таможенных и иных формальностей, проверка
количества и состояния груза, его погрузка и выгрузка, уплата пошлин, сборов и других расходов, возлагаемых на клиента, хранение груза, его получение в пункте назначения, а также выполнение иных операций и услуг.
С согласия клиента, экспедитор может сам определить, каким видом транспорта перевозить грузы клиента, учитывая при этом интересы клиента, уровень тарифов и сроки доставки.
2. В части, неурегулированной настоящей главой, к отношениям по договору экспедиции соответственно применяются положения настоящегоглавы 41 Кодекса, если экспедитор по условиям договора действует от имени клиента, и положения настоящего Кодекса, - если он действует от своего имени.главы 43
Сноска. Статья 708 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 709. Форма договора
1. Договор транспортной экспедиции заключается в письменной форме. 2. Клиент должен выдать экспедитору доверенность, если она необходима
для выполнения его обязанностей. Сноска. Статья 709 с изменением, внесенным Законом РК от 25.03.2011 №
421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 710. Документы и другая информация, предоставляемые экспедитору
1. Клиент обязан предоставить экспедитору документы и другую информацию о свойствах груза, условиях его перевозки, а также иную информацию, необходимую для исполнения экспедитором обязанности, предусмотренной договором.
2. Экспедитор обязан сообщить клиенту об обнаруженных недостатках полученной информации, а в случае неполноты информации запросить у клиента необходимые дополнительные данные.
3. В случае непредоставления клиентом необходимой информации экспедитор вправе не приступать к исполнению соответствующих обязанностей до предоставления такой информации.
4. Клиент несет ответственность за убытки, причиненные экспедитору в связи с нарушением обязанностей по предоставлению информации, указанной в пункте 1 настоящей статьи.
Сноска. Статья 710 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 711. Исполнение обязанностей экспедитора третьим лицом
1. Если из договора транспортной экспедиции не вытекает обязанность экспедитора исполнить свои обязанности лично, экспедитор вправе привлечь к исполнению своих обязанностей других лиц.
2. Возложение исполнения обязательства на третье лицо не освобождает экспедитора от ответственности перед клиентом за выполнение договора.
Статья 712. Право удержания
Экспедитор вправе удерживать груз только в связи с невыплатой вознаграждения, которое он должен получить за экспедиционные услуги.
Статья 713. Ответственность экспедитора по договору транспортной экспедиции
1. За неисполнение или ненадлежащее исполнение обязанностей по договору транспортной экспедиции экспедитор несет ответственность по основаниям и в размере, определяемых в соответствии с правилами настоящегоглавы 20 Кодекса.
2. Если экспедитор докажет, что нарушение обязательства вызвано ненадлежащим исполнением договоров перевозки, ответственность экспедитора перед клиентом определяется теми же правилами, по которым перед экспедитором отвечает соответствующий перевозчик.
Сноска. Статья 713 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 714. Односторонний отказ от исполнения договора транспортной экспедиции
1. Клиент или экспедитор вправе отказаться от исполнения договора транспортной экспедиции, предупредив об этом другую сторону в разумный срок.
2. При одностороннем отказе от исполнения договора сторона, заявившая отказ, возмещает другой стороне убытки, вызванные расторжением договора.
Сноска. Статья 714 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Глава 36. Заем
Статья 715. Договор займа
1. По договору займа одна сторона (займодатель) передает, а в случаях, предусмотренных настоящим Кодексом или договором, обязуется передать в собственность (хозяйственное ведение, оперативное управление) другой стороне (заемщику) деньги или вещи, определенные родовыми признаками, а заемщик обязуется своевременно возвратить займодателю такую же сумму денег или равное количество вещей того же рода и качества.
2. Договорами, исполнение которых связано с передачей денег или вещей, определенных родовыми признаками, может предусматриваться предоставление займа, в том числе в виде аванса, предварительной оплаты, отсрочки и рассрочки оплаты товаров (работ и услуг), если иное не установлено законодательными актами и не противоречит существу соответствующих обязательств.
3. Гражданам и юридическим лицам запрещается привлечение денег в виде займа от граждан в качестве предпринимательской деятельности и такие договоры являются ничтожными.
Данный запрет не распространяется на случаи, когда заемщиками являются банки, имеющие лицензию уполномоченного государственного органа на прием депозитов, а также на случаи приема денег в обмен на ценные бумаги, выпуск которых зарегистрирован в установленном законодательством порядке.
Сноска. Статья 715 с изменениями, внесенными законами РК от 10.07.2003 N 483 (вводится в действие с 01.01.2004); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 716. Форма договора займа
1. Договор займа должен быть заключен в форме, соответствующей правилам - настоящего Кодекса.статей 151 152
2. Договор займа признается заключенным в надлежащей письменной форме также при наличии облигации, расписки заемщика или иного документа, удостоверяющего передачу ему займодателем определенной суммы или определенного количества вещей.
Статья 717. Заключение договора займа
Договор займа считается заключенным с момента передачи денег или вещей, если иное не предусмотрено настоящим Кодексом или соглашением сторон.
В случаях, когда договором предусмотрена передача денег или вещей частями (в рассрочку), он считается заключенным с момента передачи их первой части, если договором не предусмотрено иное.
Статья 718. Вознаграждение по договору займа
1. Если иное не предусмотрено законодательными актами Республики Казахстан или договором, за пользование предметом займа заемщик выплачивает вознаграждение заимодателю в размерах, определенных договором.
Вознаграждение по договору займа, заключаемому с заемщиком – физическим лицом, определяется с учетом требований статьи 725-1 настоящего Кодекса.
2. Защита прав заемщиков банков, организаций, осуществляющих отдельные виды банковских операций, микрофинансовых организаций и кредитных товариществ обеспечивается путем установления предельного размера годовой эффективной ставки вознаграждения, включающей вознаграждение, все виды комиссий и иные платежи, взимаемые заимодателем в связи с выдачей и обслуживанием займа, и рассчитываемой в порядке, определенном законодательством Республики Казахстан.
Предельный размер годовой эффективной ставки вознаграждения определяется нормативным правовым актом Национального Банка Республики Казахстан.
3. Если по договору займа заемщику передаются вещи, выплата вознаграждения производится в том случае, когда его размер и форма (денежная или натуральная) предусмотрены договором.
4. Порядок и сроки выплаты вознаграждения устанавливаются договором займа.
Если порядок и сроки выплаты вознаграждения не установлены договором, то оно выплачивается ежемесячно.
5. Если заемщик не возвращает в срок предмет займа, вознаграждение выплачивается за весь период пользования предметом займа.
Сноска. Статья 718 в редакции Закона РК от 10.02.2011 № 406-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); с изменениями, внесенными законами РК от 05.07.2012 № 30-V (вводится в действие по истечении десяти календарных дней
после его первого официального опубликования); от 26.11.2012 № 57-V ( вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Статья 719. Предоставление предмета займа
1. Предмет займа предоставляется в сроки, в размере и на условиях, предусмотренных договором.
Если иное не предусмотрено договором, предмет займа считается предоставленным в момент передачи его заемщику или зачисления соответствующих денег на его банковский счет.
2. Заемщик вправе отказаться от получения предмета займа полностью или частично, уведомив об этом займодателя до установленного договором срока его предоставления, если иное не установлено законодательными актами или договором.
3. При предоставлении в заем вещей, определяемых родовыми признаками, исполнение условий об их количестве, ассортименте, комплектности, качестве, таре и (или) упаковке должно осуществляться в соответствии с правилами о договорах купли-продажи товаров ( - настоящего Кодекса), еслистатьи 406 492 договором не предусмотрено иное.
Статья 720. Целевой заем
1. Если иное не предусмотрено договором, заем предполагается бесцелевым, и заемщик использует полученный предмет займа по своему усмотрению.
2. В случаях, когда договор заключен на условиях использования заемщиком предмета займа на определенные цели (целевой заем), займодатель имеет право осуществлять контроль за целевым использованием займа, а заемщик обязан обеспечить возможность осуществления займодателем такого контроля.
3. При невыполнении заемщиком обязанностей по целевому использованию предмета займа, а также обязанностей, предусмотренных пунктом 2 настоящей статьи, займодатель вправе отказаться от исполнения договора соответственно непредоставленной части предмета займа и потребовать от заемщика досрочного возврата предмета займа и вознаграждения по нему.
Статья 721. Обеспечение исполнения обязательств заемщика
1. Исполнение обязательств по возврату предмета займа и выплате вознаграждения может быть обеспечено способами, предусмотренными настоящим Кодексом. В этом случае заемщик обязан предоставить займодателю возможность контроля за обеспеченностью займа, если иное не установлено законодательными актами или договором.
2. При невыполнении заемщиком обязанностей по обеспечению возврата предмета займа и выплате вознаграждения, а также при утрате обеспечения или ухудшении его условий по обстоятельствам, за которые займодатель не отвечает, займодатель вправе отказаться от исполнения договора соответственно непредоставленной части предмета займа и потребовать от заемщика досрочного возврата предмета займа и вознаграждения по нему.
Статья 722. Возврат предмета займа
1. Заемщик обязан возвратить предмет займа в порядке и сроки, предусмотренные договором.
Если иное не предусмотрено договором, предмет займа считается возвращенным в момент передачи его займодателю или зачисления соответствующих денег на его банковский счет.
Если срок возврата предмета займа договором не установлен, он должен быть возвращен заемщиком в течение тридцати дней со дня предъявления требования об этом займодателем.
Предмет займа, предоставленный без условия о выплате вознаграждения, может быть возвращен досрочно. Предмет займа, предоставленный с условием выплаты вознаграждения, может быть возвращен досрочно с согласия займодателя либо если это предусмотрено договором.
Вознаграждение по займу может быть выплачено досрочно в любое время, если иное не установлено договором.
2. С согласия займодателя, обязательства заемщика могут быть выполнены: по договору займа денег - принятием в счет долга вещей, определенных родовыми признаками; по договору займа вещей - принятием в счет долга денег. Стоимость указанных вещей определяется соглашением сторон.
3. Если договором предусмотрено возвращение предмета займа по частям (в рассрочку), то при нарушении заемщиком срока, установленного для возврата очередной части предмета займа, займодатель вправе потребовать досрочного возврата всей оставшейся части предмета займа вместе с причитающимся вознаграждением, а также удовлетворить свои требования путем обращения взыскания на заложенное имущество (подпункт 4) статьи 321пункта 2 настоящего Кодекса).
4. Если договором предусмотрена выплата вознаграждения по займу в сроки, опережающие сроки возврата самого предмета займа, то при нарушении срока, установленного для выплаты вознаграждения, займодатель вправе потребовать от заемщика досрочного возврата предмета займа вместе с причитающимся вознаграждением, а также удовлетворить свои требования путем обращения взыскания на заложенное имущество (подпункт 4) статьи 321пункта 2 настоящего Кодекса).
Сноска. Статья 722 с изменениями, внесенными Законом РК от 17.07.2015 № 333-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 723. Срок удовлетворения требования о досрочном возврате предмета займа
При предъявлении займодателем требования о досрочном возврате предмета займа по основаниям, предусмотренным пунктом 3 , пунктом 2статьи 720 статьи
, и статьи 722, новый срок возврата предмета займа и выплаты721 пунктами 3 4 вознаграждения по нему исчисляется по правилу, установленному пунктом 1
настоящего Кодекса.статьи 722
Статья 724. Оспаривание договора займа
1. Заемщик вправе оспаривать договор займа, доказывая, что предмет займа ( деньги или вещи) в действительности не получен им от займодателя или получен в меньшем размере или количестве, чем указано в договоре.
2. В тех случаях, когда договор займа должен быть совершен в письменной форме ( настоящего Кодекса), его оспаривание путем свидетельскихстатья 716 показаний не допускается, за исключением случаев, когда договор был заключен под влиянием обмана, насилия, угрозы, злонамеренного соглашения представителей сторон или стечения тяжелых обстоятельств ( ипункты 9 10 статья 159 настоящего Кодекса).
Статья 725. Новация обязательства в договор займа
1. По соглашению сторон всякое обязательство, возникшее из сделок купли-продажи, аренды имущества или иного основания, может быть оформлено договором займа.
2. Оформление обязательства в договор займа осуществляется с соблюдением требований о новации ( настоящего Кодекса) и заключается в форме,статья 372 предусмотренной для договора займа ( настоящего Кодекса).статья 716
Статья 725-1. Особенности договора займа, заключаемого с заемщиком – физическим лицом
1. Договор займа, заключаемый с заемщиком – физическим лицом, имеет следующие особенности:
1) предметом договора займа являются деньги или вещи, определенные родовыми признаками, в том числе предоставленные с отсрочкой и рассрочкой платежа;
2) по договору займа в качестве заемщика выступает физическое лицо, не являющееся индивидуальным предпринимателем;
3) заем выдается в национальной валюте Республики Казахстан; 4) договор займа в обязательном порядке должен содержать годовую
эффективную ставку вознаграждения, рассчитанную в соответствии с правилами, предусмотренными пунктом 3 настоящей статьи;
5) годовая эффективная ставка вознаграждения по договору займа не может превышать ста процентов от суммы выданного займа, в том числе в случае изменения срока возврата займа;
6) размер неустойки (штрафа, пени) за нарушение обязательства по возврату суммы займа и (или) уплате вознаграждения по договору займа не может превышать 0,5 процента от суммы неисполненного обязательства за каждый день просрочки, но не более десяти процентов от суммы выданного займа в год;
7) все платежи заемщика по договору займа, включая сумму вознаграждения, неустойки (штрафа, пени), комиссий и иных платежей, предусмотренных договором займа, за исключением предмета займа, в совокупности не могут превышать сумму выданного займа за весь период действия договора займа;
8) индексация обязательства и платежей по договору займа с привязкой к любому валютному эквиваленту не допускается;
9) условия договора займа о размерах вознаграждения, неустойки (штрафа, пени), комиссий и иных платежей не могут быть изменены в сторону их увеличения.
Требования подпунктов 4), 5), 6), 7), 8) и 9) части первой настоящего пункта распространяются на договор займа, предметом которого являются вещи, определенные родовыми признаками, в случае, если по такому договору исполнение обязательства заемщика осуществляется путем передачи в счет долга денег, а выплата и размер вознаграждения, неустойки (штрафа, пени), комиссий и иных платежей, предусмотренных договором займа, осуществляется в денежной форме.
2. Договор займа, заключаемый с заемщиком – физическим лицом, не соответствующий требованиям пункта 1 настоящей статьи, является ничтожным.
3. Правила расчета годовой эффективной ставки вознаграждения по договору займа определяются нормативным правовым актом Национального Банка Республики Казахстан.
4. К договору займа, заключаемому с заемщиком – физическим лицом, применяются правила, касающиеся договора займа, с особенностями, предусмотренными настоящей статьей.
5. Требования настоящей статьи не распространяются на договоры займа, заимодателями по которым выступают лица, указанные в статьи 718пункте 2 настоящего Кодекса.
Сноска. Глава 36 дополнена статьей 725-1 в соответствии с Законом РК от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Статья 726. Договор государственного займа
1. По договору государственного займа заемщиком выступает государство, займодателем - гражданин или юридическое лицо.
2. Государственные займы являются добровольными. 3. Договор государственного займа заключается путем приобретения
займодателем выпущенных государственных облигаций, а также иных государственных ценных бумаг (документарных или бездокументарных), удостоверяющих право займодателя на получение от заемщика предоставленных ему взаймы денег или, в зависимости от условий займа, иного имущественного эквивалента, установленного вознаграждения либо иных имущественных прав в сроки, предусмотренные условиями выпуска в обращение данного займа.
4. По своим обязательствам, вытекающим из договора государственного займа, заемщик отвечает имуществом государственной казны.
5. Особенности участия Республики Казахстан в отношениях государственного займа могут устанавливаться законодательными актами.
Статья 727. Договор банковского займа
1. По договору банковского займа займодатель обязуется передать взаймы деньги заемщику на условиях платности, срочности, возвратности.
1-1. По договору банковского займа, по которому заимодателем выступает исламский банк, заем денег осуществляется на условиях срочности и возвратности и без взимания вознаграждения за пользование деньгами.
2. К договору банковского займа применяются правила, касающиеся договора займа, с особенностями, предусмотренными статьей 728 настоящего Кодекса.
Сноска. Статья 727 с изменениями, внесенными Законами РК от 23.12.2005 N 107 (порядок введения в действие см. ст. 2); от 12.02.2009 № 133-IV (порядок введения в действие см. ст. 2).
Статья 728. Особенности договора банковского займа и договора о предоставлении микрокредита
Договор банковского займа и договор о предоставлении микрокредита имеют следующие особенности:
1) по договору банковского займа в качестве заимодателя выступают банк или иное юридическое лицо, имеющее лицензию уполномоченного государственного органа на банковские заемные операции;
2) по договору о предоставлении микрокредита в качестве заимодателя выступает микрофинансовая организация;
3) предметом договора банковского займа, договора о предоставлении микрокредита являются деньги, которые могут быть предоставлены в будущем. В последнем случае договор банковского займа, договор о предоставлении микрокредита считаются вступившими в силу с момента их заключения (пункт 1 статьи 393 настоящего Кодекса), если этими договорами не предусмотрено иное;
4) договор банковского займа, договор о предоставлении микрокредита должны быть заключены в письменной форме. Несоблюдение письменной формы влечет ничтожность договора банковского займа, договора о предоставлении микрокредита;
5) договор банковского займа, договор о предоставлении микрокредита не могут содержать условие, предусматривающее право банка или иного юридического лица, имеющего лицензию уполномоченного государственного органа на банковские заемные операции, микрофинансовой организации на одностороннее изменение условий договора, если иное не предусмотрено законодательными актами Республики Казахстан;
6) к договору банковского займа, договору о предоставлении микрокредита не применяются положения пункта 2 статьи 722 настоящего Кодекса, за исключением случаев, предусмотренных банковским законодательством Республики Казахстан либо законодательством Республики Казахстан о микрофинансовых организациях;
7) положения и статьи 722 настоящего Кодекса применяются кпунктов 3 4 договору банковского займа, договору о предоставлении микрокредита при нарушении заемщиком срока, установленного для возврата очередной части предмета займа, микрокредита и (или) выплаты вознаграждения, более чем на сорок календарных дней.
Банкам запрещается выдача займов, обеспеченных акциями, эмитентом которых является данный банк, либо займов на покупку данных акций.
Особенности ипотечного займа, предоставляемого физическим лицам, определяются Республики Казахстан "О банках и банковскойЗаконом деятельности в Республике Казахстан".
Сноска. Статья 728 в редакции Закона РК от 24.11.2015 № 422-V (вводится в действие с 01.01.2016); с изменениями, внесенными законами РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Глава 37. Финансирование под уступку денежного требования (факторинг)
Статья 729. Договор финансирования под уступку денежного требования (факторинга)
1. По договору финансирования под уступку денежного требования одна сторона (финансовый агент) передает или обязуется передать деньги в распоряжение другой стороны (клиента), а клиент уступает или обязуется уступить финансовому агенту свое денежное требование к третьему лицу, вытекающее из отношений клиента (кредитора) с этим третьим лицом ( должником).
Денежное требование к должнику может быть уступлено клиентом финансовому агенту также в целях обеспечения исполнения обязательства клиента перед финансовым агентом.
2. Обязательства финансового агента по договору финансирования под уступку денежного требования могут включать в себя ведение для клиента бухгалтерского учета и предъявление документов в отношении денежных требований (выставление счетов по денежным требованиям), являющихся предметом уступки, а также предоставление клиенту иных финансовых услуг, связанных с этими требованиями.
3. Общие правила об уступке требования, установленные настоящим Кодексом ( - настоящего Кодекса), применяются к финансированиюстатьи 339 347 под уступку денежного требования, если иное не предусмотрено настоящей главой.
Статья 730. Форма договора о финансировании под уступку денежного требования
Договор финансирования под уступку денежного требования должен быть заключен в письменной форме с соблюдением требований, установленных
настоящего Кодекса.статьей 346
Статья 731. Денежное требование, уступаемое в целях получения финансирования
1. Предметом уступки, под которую предоставляется финансирование, может быть как денежное требование, срок платежа по которому уже наступил ( существующее требование), так и право на получение денег, которое возникнет в будущем (будущее требование).
Денежное требование, являющееся предметом уступки, должно быть определено в договоре клиента с финансовым агентом таким образом, который позволяет идентифицировать существующее денежное требование в момент заключения договора, а будущее требование - не позднее чем в момент его возникновения.
2. Существующее денежное требование считается перешедшим к финансовому агенту с момента заключения договора, если этим договором не предусмотрено иное.
При уступке будущего денежного требования оно считается перешедшим к финансовому агенту после того, как возникло само право на получение с должника денег, которые являются предметом уступки требования, предусмотренного договором.
Если уступка денежного требования обусловлена определенным событием, она вступает в силу после наступления этого события. Дополнительного оформления уступки денежного требования в этих случаях не требуется.
Статья 732. Ответственность клиента перед финансовым агентом
1. Если договором не предусмотрено иное, клиент несет перед финансовым агентом ответственность за недействительность денежного требования, являющегося предметом уступки.
2. Денежное требование, являющееся предметом уступки, признается действительным, если клиент обладает правом на передачу денежного требования и в момент уступки этого требования ему неизвестны обстоятельства, вследствие которых должник вправе его не исполнять.
3. Клиент не отвечает за неисполнение или ненадлежащее исполнение должником требования, являющегося предметом уступки, в случае предъявления его финансовым агентом к исполнению, если иное не предусмотрено договором между клиентом и финансовым агентом.
Статья 733. Недействительность запрета уступки требования
1. Уступка финансовому агенту денежного требования является действительной, даже если между клиентом и его должником существует соглашение о ее запрете или ограничении.
2. Положение, установленное пунктом 1 настоящей статьи, не освобождает клиента от обязательств или ответственности перед должником в связи с уступкой требования в нарушение существующего между ними соглашения о ее запрете или ограничении.
Сноска. Статья 733 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 734. Последующая уступка денежного требования
Если договором финансирования под уступку денежного требования не предусмотрено иное, последующая уступка денежного требования финансовым агентом не допускается.
В случаях, когда последующая уступка денежного требования допускается договором, к ней соответственно применяются положения настоящей главы.
Статья 735. Исполнение денежного требования должником финансовому агенту
1. Должник обязан произвести платеж финансовому агенту при условии, что он получил от клиента либо от финансового агента письменное уведомление об уступке денежного требования данному финансовому агенту.
В уведомлении должно быть конкретно определено подлежащее исполнению денежное требование и указан финансовый агент, которому должен быть произведен платеж.
2. По просьбе должника финансовый агент обязан в разумный срок представить должнику доказательство того, что уступка денежного требования финансовому агенту действительно имела место. Если финансовый агент не выполнил этой обязанности, должник вправе произвести по данному требованию платеж клиенту во исполнение своего обязательства перед последним.
3. Исполнение денежного требования должником финансовому агенту в соответствии с правилами настоящей статьи освобождает должника от соответствующего обязательства перед клиентом.
Статья 736. Права финансового агента на суммы, полученные от должника
1. Если по условиям договора финансирования под уступку денежного требования финансирование клиента осуществляется путем покупки у него этого требования финансовым агентом, последний приобретает право на все суммы, которые он получит от должника во исполнение требования, а клиент не несет ответственности перед финансовым агентом за то, что полученные им суммы оказались меньше суммы, которую финансовый агент выплатил клиенту.
2. Если уступка денежного требования финансовому агенту осуществлена как способ обеспечения исполнения клиентом своего обязательства перед финансовым агентом и договором финансирования под уступку требования не предусмотрено иное, финансовый агент обязан предоставить отчет клиенту и передать ему сумму, превышающую сумму обязательства клиента, обеспеченного уступкой требования. Если деньги, полученные финансовым агентом от должника, оказались меньше суммы обязательства клиента финансовому агенту, обеспеченной уступкой требования, клиент несет ответственность по оставшейся части обязательства.
3. Правила настоящей статьи применяются, если договором финансирования под уступку денежного требования не предусмотрено иное.
Сноска. Статья 736 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 737. Встречные требования должника
В случае обращения финансового агента к должнику с требованием произвести платеж должник вправе в соответствии со настоящегостатьей 370 Кодекса предъявить к зачету свои денежные требования, основанные на договоре с клиентом, которые уже имелись у должника ко времени, когда им было получено уведомление об уступке требования финансовому агенту.
Финансовый агент вправе отказаться от зачета, если клиент не уведомил его о наличии обязательств перед должником.
Статья 738. Возврат должнику сумм, полученных финансовым агентом
1. В случае нарушения клиентом своих обязательств по договору, заключенному с должником, последний не вправе требовать от финансового агента возврата сумм, им уже уплаченных по перешедшему к агенту требованию, если должник вправе получить такие суммы непосредственно с клиента.
2. Должник, имеющий право получить непосредственно с клиента суммы, уплаченные финансовому агенту в результате уступки
требования, тем не менее вправе требовать возвращения этих сумм финансовым агентом, если доказано, что последний не исполнил свое обязательство перед клиентом осуществить его финансирование под уступку требования либо произвел такое финансирование, зная о нарушении клиентом того обязательства перед должником, к которому относится финансирование, связанное с уступкой требования.
Статья 738-1. Уступка денежного требования при проектном финансировании и секьюритизации
Особенности финансирования под уступку денежного требования при проектном финансировании и секьюритизации устанавливаются законодательным актом Республики Казахстан о проектном финансировании и секьюритизации. Положения настоящей главы применяются к сделкам проектного финансировании и секьюритизации, если иное не установлено законодательным актом Республики Казахстан о проектном финансировании и секьюритизации.
Сноска. Статья 738-1 в редакции Закона РК от 12.01.2012 № 539-IV (вводится в действие по истечении 10 календарных дней после его первого официального опубликования). Статья 738-2. Уступка денежного требования при финансировании проектов государственно-частного партнерства и концессии
Особенности финансирования проектов государственно-частного партнерства и концессии под уступку денежного требования устанавливаются законодательством Республики Казахстан в области государственно-частного партнерства и о концессиях.
Положение настоящей главы применяется к сделкам финансирования проектов государственно-частного партнерства и концессии, если иное не установлено законодательством Республики Казахстан в области государственно-частного партнерства и о концессиях.
Сноска. Глава 37 дополнена статьей 738-2 в соответствии с Законом РК от 04.07.2018 № 171-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Глава 38. Банковское обслуживание Параграф 1. Общие положения
Статья 739. Договор банковского обслуживания
1. По договору банковского обслуживания одна сторона (банк) обязуется по поручению другой стороны (клиента) оказать банковские услуги, а клиент обязуется оплатить эти услуги, если иное не предусмотрено договором.
2. Договор банковского обслуживания подразделяется на: 1) договор банковского счета; 2) договор перевода денег; 3) договор банковского вклада;
4) иные виды договоров, предусмотренные законодательством или соглашением сторон.
2-1. При заключении с банком договора банковского счета и (или) договора банковского вклада открываются банковские счета.
3. Банк может использовать имеющиеся на банковском счете деньги, гарантируя право клиента беспрепятственно распоряжаться своими деньгами.
Сноска. Статья 739 с изменениями, внесенными Законом РК от 05.07.2012 № 30-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 740. Ограничения распоряжения деньгами, находящимися в банке
П р и м е ч а н и е Р Ц П И ! В пункт 1 предусмотрены изменения Законом РК от 21.01.2019 (№ 217-VI
вводится в действие по истечении трех месяцев со дня его первого официального опубликования).
1. На деньги граждан и юридических лиц, находящиеся на банковских счетах, может быть наложен арест не иначе как судами на основании судебных актов и судебными исполнителями на основании постановлений судебных исполнителей , санкционированных судом, в порядке и по основаниям, которые установлены уголовно-процессуальным и гражданским процессуальным законодательством Республики Казахстан и законодательством Республики Казахстан об исполнительном производстве и статусе судебных исполнителей.
На деньги, находящиеся на банковских счетах клиента, лицом, осуществляющим досудебное расследование, может быть установлено временное ограничение на распоряжение имуществом либо ограничение на совершение сделок и иных операций с имуществом по основаниям и в порядке,
предусмотренным уголовно-процессуальным законодательством Республики Казахстан.
Не допускаются установление временного ограничения на распоряжение имуществом, ограничений на совершение сделок и иных операций с имуществом , наложение ареста:
1) на деньги, находящиеся на банковских счетах, предназначенных для зачисления пособий и социальных выплат, выплачиваемых из государственного бюджета и (или) Государственного фонда социального страхования;
2) на деньги, находящиеся на банковских счетах, предназначенных для зачисления жилищных выплат;
2-1) на деньги, находящиеся на банковских счетах в жилищных строительных сберегательных банках в виде жилищных строительных сбережений, накопленные за счет использования жилищных выплат;
3) на деньги, внесенные на условиях депозита нотариуса; 4) на деньги, находящиеся на банковских счетах по договору об
образовательном накопительном вкладе, заключенному в соответствии с Законом Республики Казахстан "О Государственной образовательной накопительной системе";
5) на активы фонда социального медицинского страхования, находящиеся на банковских счетах;
6) на деньги банков, страховых (перестраховочных) организаций, добровольных накопительных пенсионных фондов, лишенных уполномоченным государственным органом лицензии и (или) находящихся в процессе принудительной ликвидации;
7) на деньги, находящиеся на банковских счетах, предназначенных для зачисления компенсации инвестиционных затрат, в соответствии с законодательством Республики Казахстан в области государственно-частного партнерства и о концессиях.
Положение подпункта 7) части третьей настоящего пункта не распространяется на ограничения, накладываемые органами государственных доходов, а также судами на основании судебных актов и судебными исполнителями на основании постановлений судебных исполнителей, санкционированных судом, по которым имеются требования, относящиеся к первой, второй и третьей очередям в соответствии с очередностью, предусмотренной статьи 742 настоящего Кодекса.пунктом 2
2. Срок ареста находящихся в банках денег юридических лиц и граждан не может превышать сроки, установленные для ведения соответствующих дел уголовно-процессуальным и гражданско-процессуальным законодательством Республики Казахстан.
3. Акты о наложении ареста на деньги клиента, находящиеся на банковских счетах, могут быть обжалованы в суд в установленном законами Республики Казахстан порядке.
4. Приостановление расходных операций по банковским счетам клиента производится в порядке и случаях, установленных законодательными актами Республики Казахстан.
5. Исключен Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
6. Акты о наложении ареста, решения и (или) распоряжения уполномоченных государственных органов или должностных лиц о приостановлении расходных операций по банковским счетам клиента, предъявленные к банковскому счету клиента, исполняются с учетом даты и времени поступления.
Изъятие денег, находящихся на банковском счете клиента, в случае недостаточности денег и (или) при наличии ограничения распоряжения деньгами , находящимися на банковском счете, производится с учетом настоящейпункта 8 статьи и в соответствии с очередностью, предусмотренной статьи 742пунктом 2 настоящего Кодекса.
7. Исключен Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
8. Ограничения распоряжения деньгами, находящимися в банке, не распространяются на изъятие денег по требованиям, относящимся к одной очереди и (или) вышестоящей в соответствии с очередностью, предусмотренной
статьи 742 настоящего Кодекса.пунктом 2 Сноска. Статья 740 в редакции Закона РК от 11.07.2009 N 185 (вводится в
действие с 30.08.2009); с изменениями, внесенными законами РК от 10.02.2011 № 406-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 21.06.2013 № 106-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 15.01.2014 № 164-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 29.09.2014 № 239-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 26.07.2016 № 12-VІ (вводится в действие по истечении тридцати календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49- VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 30.06.2017 № 80-VI (вводится в действие по истечении десяти календарных дней после дня его первого
официального опубликования); от 12.12.2017 № 114-VI (вводится в действие с 01.01.2018); от 04.07.2018 № 171-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 741. Изъятие денег без согласия клиента
Изъятие находящихся в банках и иных организациях, осуществляющих отдельные виды банковских операций, денег граждан и юридических лиц без их согласия может быть произведено только на основании вступившего в законную силу судебного акта, а также в случаях, предусмотренных Кодексом Республики Казахстан "О налогах и других обязательных платежах в бюджет" (Налоговый кодекс), таможенным законодательством Евразийского экономического союза и ( или) Республики Казахстан, законами Республики Казахстан "О пенсионном обеспечении в Республике Казахстан", "Об обязательном социальном страховании", "О платежах и платежных системах", "Об обязательном социальном медицинском страховании".
Не допускается обращение взыскания: 1) на деньги, находящиеся на банковских счетах, предназначенных для
зачисления пособий и социальных выплат, выплачиваемых из государственного бюджета и (или) Государственного фонда социального страхования;
2) на деньги, находящиеся на банковских счетах, предназначенных для зачисления жилищных выплат;
2-1) на деньги, находящиеся на банковских счетах в жилищных строительных сберегательных банках в виде жилищных строительных сбережений, накопленные за счет использования жилищных выплат;
3) на деньги, внесенные на условиях депозита нотариуса; 4) на деньги, находящиеся на банковских счетах по договору об
образовательном накопительном вкладе, заключенному в соответствии с Законом Республики Казахстан "О Государственной образовательной накопительной системе";
5) на активы фонда социального медицинского страхования, находящиеся на банковских счетах;
6) на деньги, находящиеся на банковских счетах, предназначенных для зачисления компенсации инвестиционных затрат, в соответствии с законодательством Республики Казахстан в области государственно-частного партнерства и о концессиях.
Положение подпункта 6) части второй настоящей статьи не распространяется на изъятие денег по требованиям, относящимся к первой, второй и третьей
очередям в соответствии с очередностью, предусмотренной статьи 742пунктом 2 настоящего Кодекса.
Сноска. Статья 741 в редакции Закона РК от 30.06.2017 № 80-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); с изменениями, внесенными законами РК от 12.12.2017 № 114-VI (вводится в действие с 01.01.2018); от 04.07.2018 № 171-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 742. Очередность изъятия денег клиента
1. При достаточности денег клиента в банке для удовлетворения всех требований, предъявленных к клиенту, изъятие денег осуществляется в порядке поступления распоряжений клиента или иных лиц (календарная очередность), если иное не предусмотрено законодательными актами.
2. При недостаточности денег клиента в банке для удовлетворения очередного требования, предъявленного к клиенту, банк аккумулирует поступающие в пользу клиента деньги, сумма которых достаточна для удовлетворения указанного требования, за исключением случаев, предусмотренных законодательными актами Республики Казахстан. При предъявлении к клиенту нескольких требований, банк производит изъятие денег клиента в следующей очередности:
1) в первую очередь осуществляется изъятие денег по исполнительным документам, предусматривающим удовлетворение требований о возмещении вреда, причиненного жизни и здоровью, а также требований по взысканию алиментов;
Примечание РЦПИ! В подпункт 2) предусмотрено изменение Законом РК от 02.08.2015 (№ 342-V
в действие с 01.01.2020).вводится 2) во вторую очередь производится изъятие денег по исполнительным
документам, предусматривающим изъятие денег для расчетов по выплате выходных пособий и оплате труда с лицами, работающими по трудовому договору, выплате вознаграждений по авторскому договору, обязательствам клиента по перечислению обязательных пенсионных взносов, обязательных профессиональных пенсионных взносов в единый накопительный пенсионный фонд и социальных отчислений в Государственный фонд социального страхования, отчислений и (или) взносов на обязательное социальное медицинское страхование в фонд социального медицинского страхования;
3) в третью очередь производится изъятие денег по обязательствам клиента перед бюджетом;
4) в четвертую очередь производится изъятие денег по исполнительным документам, предусматривающим удовлетворение других денежных требований;
5) в пятую очередь производится изъятие денег для удовлетворения других требований, предъявленных к клиенту в порядке календарной очередности.
Изъятие денег из банка по требованиям, относящимся к одной очереди, производится в повременной очередности поступления соответствующих документов.
3. При ликвидации юридического лица, являющегося клиентом, удовлетворение требований кредиторов производится в очередности, предусмотренной настоящего Кодекса.статьей 51
Сноска. Статья 742 с изменениями, внесенными законами РК от 29.03.2000 N 42; от 13.03.2003 N 394; от 09.07.2003 N 482; от 08.04.2004 N 542 (вводится в действие с 01.01.2005); от 15.05.2007 N 253; от 21.06.2013 № 106-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 16.11.2015 № 406-V (вводится в действие с 01.07.2017).
Статья 743. Оказание банковских услуг организациями, осуществляющими отдельные виды банковских операций
Отдельные виды банковских услуг вправе оказывать организации, осуществляющие отдельные виды банковских операций.
Оказание отдельных видов банковских услуг такими организациями осуществляется в порядке, установленном настоящим Кодексом и законодательными актами Республики Казахстан.
Сноска. В статью 743 внесены изменения - Законом РК от 23 декабря 2005 года N 107 (порядок введения в действие см. ст.2 Закона N 107).
Статья 744. Оплата услуг банка
Клиент оплачивает услуги банка, оказываемые им по договору банковского обслуживания, на условиях и в порядке, предусмотренных договором.
Статья 745. Банковская тайна
Банк гарантирует неразглашение банковской тайны.
Перечень сведений, составляющих банковскую тайну, и основания ее выдачи определяются законодательными актами, регулирующими банковскую деятельность.
Статья 746. Ответственность за нарушение условий банковского обслуживания клиентов
За совершение нарушений, связанных с банковским обслуживанием клиентов , банки и организации, осуществляющие отдельные виды банковских операций, несут ответственность в пределах, установленных законодательными актами Республики Казахстан, регулирующими банковскую деятельность и договорами банковского обслуживания.
Сноска. Статья 746 - в редакции Закона РК от 29 марта 2000 г. N 42.
Параграф 2. Банковский счет
Статья 747. Договор банковского счета
1. По договору банковского счета одна сторона (банк, организация, осуществляющая отдельные виды банковских операций) обязуется принимать деньги, поступающие в пользу другой стороны (клиента), выполнять распоряжения клиента о переводе (выдаче) клиенту или третьим лицам соответствующих сумм денег и оказывать другие услуги, предусмотренные договором банковского счета.
Допускается открытие по договору банковского счета текущего или сберегательного счета на имя третьего лица с условием депонирования ( блокировки) денег, находящихся на данном текущем или сберегательном счете, без права совершения владельцем текущего или сберегательного счета расходных операций до наступления или выполнения им условий, определенных договором банковского счета.
При открытии банковского счета клиенту или указанному им лицу для целей учета денег клиента в банке (организации, осуществляющей отдельные виды банковских операций) присваивается индивидуальный идентификационный код клиента на условиях, согласованных сторонами. Порядок присвоения, аннулирования индивидуального идентификационного кода клиента, ведения банком (организацией, осуществляющей отдельные виды банковских операций) учета денег клиента определяется банковским законодательством Республики Казахстан.
2. Юридические лица и граждане самостоятельно выбирают банки для обслуживания и вправе заключать договоры банковского счета как с одним, так и несколькими банками.
3. Договор банковского счета является бессрочным, если иное не установлено законодательными актами или соглашением сторон.
Сноска. Статья 747 с изменениями, внесенными законами РК от 29.11.1999 N 486; от 26.07.2016 № 12-VІ (вводится в действие по истечении тридцати календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 748. Форма договора банковского счета
1. Договор банковского счета должен быть заключен в письменной форме. 2. Несоблюдение письменной формы договора банковского счета влечет
ничтожность этого договора. Сноска. Статья 748 с изменением, внесенным Законом РК от 27.02.2017 № 49
-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 749. Распоряжение деньгами клиента
1. Банк (организация, осуществляющая отдельные виды банковских операций ) осуществляет изъятие денег клиента, находящихся в банке (организации, осуществляющей отдельные виды банковских операций), на основании распоряжения клиента, если иное не предусмотрено законодательными актами или договором банковского счета.
Банк не вправе определять и контролировать направления использования денег клиентом и устанавливать другие не предусмотренные законодательством ограничения его права распоряжаться деньгами по своему усмотрению, если иное не предусмотрено законодательством или договором банковского счета.
2. Если деньги были внесены гражданином, то правом распоряжения деньгами, находящимися в банке (организации, осуществляющей отдельные виды банковских операций), пользуется либо сам гражданин, либо лицо, которому он доверил это право.
Если деньги были внесены юридическим лицом, то правом распоряжения деньгами, находящимися в банке (организации, осуществляющей отдельные виды банковских операций), пользуется руководитель данного юридического лица и (или) иные уполномоченные им лица.
3. Права лиц, осуществляющих от имени клиента распоряжение деньгами, находящимися в банке (организации, осуществляющей отдельные виды банковских операций), подтверждаются клиентом путем представления банку ( организации, осуществляющей отдельные виды банковских операций) документов, предусмотренных законодательством и договором.
4. Договором банковского счета должен быть установлен порядок распоряжения деньгами, находящимися в банке (организации, осуществляющей отдельные виды банковских операций). Требования к такому порядку устанавливаются законодательными актами, регулирующими банковскую деятельность.
Сноска. Статья 749 с изменениями, внесенными Законом РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 750. Операции, выполняемые банком (организацией, осуществляющей отдельные виды банковских операций) по договору банковского счета
Сноска. Заголовок статьи 750 в редакции Закона РК от 02.07.2018 (№ 166-VI вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
1. В соответствии с договором банковского счета банк (организация, осуществляющая отдельные виды банковских операций) обязан (обязана):
1) обеспечить наличие денег при предъявлении требований клиента; 2) принимать деньги, поступившие в пользу клиента; 3) выполнять распоряжения клиента о переводе денег в пользу третьих лиц; 4) исполнять распоряжения третьих лиц об изъятии денег клиента, если это
предусмотрено законодательными актами Республики Казахстан и (или) договором банковского счета;
5) осуществлять прием от клиента и выдачу ему наличных денег в порядке, установленном договором банковского счета;
6) представлять по требованию клиента информацию о сумме денег клиента в банке (организации, осуществляющей отдельные виды банковских операций) и произведенных операциях в порядке, предусмотренном договором;
7) производить иное банковское обслуживание клиента, предусмотренное договором, законодательством и применяемыми в банковской практике обычаями делового оборота.
2. Банк (организация, осуществляющая отдельные виды банковских операций ) обязан (обязана) принимать деньги, поступившие в пользу клиента, а также
производить изъятие или выдачу денег клиента, с отражением таких операций по его индивидуальному идентификационному коду не позднее дня, следующего за днем поступления в банк (организацию, осуществляющую отдельные виды банковских операций) соответствующего указания, если иные сроки не предусмотрены законодательными актами и изданными в соответствии с ними нормативными правовыми актами Национального Банка Республики Казахстан.
Сноска. Статья 750 с изменениями, внесенными законами РК от 11.07.2009 N 185 (вводится в действие с 30.08.2009); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 751. Вознаграждение за пользование деньгами
За пользование деньгами, находящимися в банке, банк уплачивает вознаграждение в размере и порядке, определяемых договором, с учетом положений настоящей статьи.
За пользование деньгами, размещенными на текущем банковском счете, вознаграждение не выплачивается.
За осуществление безналичных платежей и переводов денег банк может выплачивать доход, определяемый договором банковского счета, от суммы безналичных платежей и переводов денег.
Сноска. Статья 751 с изменениями, внесенными законами РК от 29.11.1999 № 486; от 02.07.2018 № 168-VІ (вводится в действие с 01.01.2019).
Статья 752. Расторжение договора банковского счета
1. Договор банковского счета расторгается по заявлению клиента в любое время, если иное не предусмотрено законодательством или договором.
2. Расторжение договора банковского счета является основанием для аннулирования индивидуального идентификационного кода клиента.
3. Деньги, оставшиеся в банке (организации, осуществляющей отдельные виды банковских операций), выдаются клиенту либо по его указанию переводятся (изымаются) в пользу третьих лиц.
Сноска. Статья 752 с изменением, внесенным Законом РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 753. Банковские счета банков
Правила настоящей главы распространяются на банковские счета банков, если иное не предусмотрено законодательными актами или принятыми в соответствии с ними нормативными правовыми актами Национального Банка Республики Казахстан.
Параграф 3. Перевод денег
Статья 754. Договор о переводе денег
1. По договору о переводе денег одна сторона (банк) обязуется по поручению другой стороны (клиента) перевести третьему лицу деньги без присвоения клиенту индивидуального идентификационного кода.
2. Порядок перевода денег банком без присвоения клиенту индивидуального идентификационного кода устанавливается законодательными актами, регулирующими банковскую деятельность.
Статья 755. Заключение договоров о переводе денег
Договор о переводе денег без открытия банковского счета считается заключенным, если банк принимает к исполнению поручение клиента в момент обращения клиента с предложением об оказании ему такой банковской услуги, если иное не предусмотрено законодательными актами, регулирующими банковскую деятельность.
Параграф 4. Банковский вклад
Статья 756. Договор банковского вклада
По договору банковского вклада одна сторона (банк) обязуется принять от другой стороны (вкладчика) деньги (вклад), выплачивать по ним вознаграждение в размере и порядке, предусмотренных договором банковского вклада, и возвратить вклад на условиях и в порядке, предусмотренных для вклада данного вида законодательными актами и договором.
По каждому из видов вкладов банки в целях учета денег клиента присваивают ему индивидуальный идентификационный код. Порядок
присвоения, аннулирования индивидуального идентификационного кода, ведения банком учета денег клиента определяется банковским законодательством Республики Казахстан.
Особенности банковских вкладов могут устанавливаться законодательными актами Республики Казахстан, регулирующими банковскую деятельность.
Сноска. Статья 756 с изменениями, внесенными Законами РК от 09.07.2003 N 482; от 12.02.2009 № 133-IV (порядок введения в действие см. ст. 2).
Статья 757. Виды банковских вкладов
1. В зависимости от условий возврата вкладов они подразделяются на следующие виды:
1) вклад до востребования; 2) срочный вклад; 2-1) сберегательный вклад; 3) условный вклад. 2. Вклад до востребования подлежит возврату полностью или частично по
первому требованию вкладчика. 3. Срочный вклад вносится на определенный срок.
В случаях, когда срочный вклад затребован вкладчиком до истечения установленного срока, вознаграждение по вкладу выплачивается в размере, установленном по вкладу до востребования, если иное не предусмотрено договором банковского вклада.
4. Сберегательный вклад вносится на определенный срок. В случаях, когда сберегательный вклад затребован вкладчиком до истечения
установленного срока, вознаграждение по вкладу выплачивается в размере, установленном по вкладу до востребования.
5. Условный вклад вносится до наступления определенных договором банковского вклада обстоятельств.
В случаях, когда условный вклад затребован вкладчиком до наступления определенных договором банковского вклада обстоятельств, вознаграждение по вкладу выплачивается в размере, установленном по вкладу до востребования, если иное не предусмотрено договором банковского вклада.
Сноска. Статья 757 с изменениями, внесенными Законом РК от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Статья 758. Форма договора банковского вклада
1. Договор банковского вклада должен быть заключен в письменной форме, отвечающей требованиям, установленным законодательными актами, нормативными правовыми актами Национального Банка Республики Казахстан и применяемыми в банковской практике обычаями делового оборота.
2. По требованию вкладчика документ, удостоверяющий сделанный вклад, может быть оформлен либо на его имя, либо на имя определенного третьего лица .
3. Несоблюдение письменной формы договора банковского вклада влечет ничтожность этого договора.
Сноска. Статья 758 с изменениями, внесенными законами РК от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 759. Срок действия договора банковского вклада
1. Договор банковского вклада считается заключенным со дня поступления суммы вклада в банк.
2. Договор банковского вклада до востребования является бессрочным. 2-1. Срок вклада, предусмотренный договором банковского вклада, может
быть изменен при применении к банку мер по урегулированию банка, отнесенного к категории неплатежеспособных банков, в соответствии с Законом Республики Казахстан "О банках и банковской деятельности в Республике Казахстан".
3. В случае, когда вкладчик не истребует сумму срочного и (или) сберегательного вкладов после истечения их срока, а также сумму условного вклада после наступления тех обстоятельств, с которыми договор банковского вклада связывает возврат вклада, договор банковского вклада считается продленным на условиях вклада до востребования, если иное не предусмотрено договором.
Сноска. Статья 759 с изменениями, внесенными Законом РК от 02.07.2018 № 168-VІ (порядок введения в действие см. ст. 2).
Статья 760. Вознаграждение по договору банковского вклада
1. Банк выплачивает вкладчику вознаграждение на сумму вклада в размере, определяемом договором банковского вклада, с учетом положений настоящей статьи.
1-1. Размер вознаграждения по вкладу до востребования устанавливается договором банковского вклада, но не может превышать 0,1 процента годовых.
1-2. Ставка вознаграждения по срочным и сберегательным вкладам может быть фиксированной или плавающей.
Фиксированной ставкой вознаграждения является ставка вознаграждения, размер которой не может быть снижен в течение срока вклада, предусмотренного договором банковского вклада.
Плавающей ставкой вознаграждения является ставка вознаграждения, размер которой изменяется в соответствии с условиями, предусмотренными договором банковского вклада.
Порядок исчисления, условия действия плавающей ставки вознаграждения по договору банковского вклада определяются нормативным правовым актом Национального Банка Республики Казахстан.
2. Банк не вправе изменять размер вознаграждения по вкладам в одностороннем порядке, за исключением случаев увеличения размера вознаграждения или продления срока вклада, предусмотренного договором банковского вклада, с учетом особенностей, установленных пунктом 3 настоящей статьи.
3. Размер вознаграждения по договору банковского вклада может быть изменен при применении к банку мер по урегулированию банка, отнесенного к категории неплатежеспособных банков, в соответствии с РеспубликиЗаконом Казахстан "О банках и банковской деятельности в Республике Казахстан".
Сноска. Статья 760 с изменениями, внесенными законами РК от 29.11.1999 N 486; от 10.02.2011 № 406-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 26.07.2016 № 12-VІ (вводится в действие по истечении тридцати календарных дней после дня его первого официального опубликования); от 02.07.2018 № 168- VІ (порядок введения в действие см. ст. 2).
Статья 761. Порядок выплаты вознаграждения по договору банковского вклада
1. Вознаграждение по договору банковского вклада выплачивается банком в порядке и размере, установленных договором банковского вклада.
2. Если иное не предусмотрено договором банковского вклада, вознаграждение по банковским вкладам, указанным в пункте 3 настоящей статьи, выплачивается вкладчику по его требованию по истечении каждого квартала отдельно от суммы вклада, а сумма невостребованного в этот срок вознаграждения увеличивает сумму вклада, за которую выплачивается вознаграждение.
При возврате вклада вкладчику выплачивается все причитающееся ему к этому моменту вознаграждение.
3. По вкладам до востребования вкладчик вправе получить причитающееся ему вознаграждение по вкладу отдельно от суммы вклада.
По срочным вкладам вкладчик вправе получить причитающееся ему вознаграждение по вкладу отдельно от суммы вклада до истечения его срока. Если иное не предусмотрено договором банковского вклада, размер вознаграждения по срочным вкладам пересчитывается применительно к тому размеру, который применяется банком для вкладов до востребования. По истечении срока вклада вкладчик вправе получить причитающееся ему вознаграждение в полном размере, независимо от того, истребует он вклад или нет (пункт 3 настоящего Кодекса)..статьи 759
По условным вкладам получение вкладчиком причитающегося ему вознаграждения отдельно от суммы вклада производится в порядке, установленном договором банковского вклада.
4. Вознаграждение выплачивается в сроки и в форме, предусмотренные для возврата вклада ( настоящего Кодекса).статья 765
5. При полном возврате вклада вкладчику выплачивается все причитающееся ему к этому моменту вознаграждение.
Сноска. Статья 761 с изменениями, внесенными Законом РК от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования)
Статья 762. Внесение вкладов
1. Если иное не предусмотрено договором банковского вклада, вкладчики вносят вклады как наличными деньгами, так и путем безналичных переводов.
2. При вкладе до востребования деньги могут вноситься вкладчиком отдельными взносами в любых суммах и в любой периодичности. При этом расчет вознаграждения по вновь поступающим суммам производится применительно к тому размеру вознаграждения, который применялся банком в день поступления денег.
При срочных, сберегательных вкладах, а также условных вкладах деньги вносятся вкладчиком в виде разового взноса, если иное не предусмотрено договором банковского вклада.
Сноска. Статья 762 с изменениями, внесенными Законом РК от 02.07.2018 № 168-VІ (вводится в действие по истечении десяти календарных дней со дня его первого официального опубликования).
Статья 763. Внесение третьими лицами денег во вклад
Во вклад вносятся деньги, поступившие в банк на имя вкладчика от третьих лиц с указанием необходимых данных о его индивидуальном идентификационном коде.
Статья 764. Вклады в пользу третьих лиц
1. Вклад может быть внесен в банк на имя определенного третьего лица. Указание имени гражданина ( настоящего Кодекса) илистатья 15
наименования юридического лица ( настоящего Кодекса), в пользустатья 38 которого вносится вклад, является существенным условием соответствующего договора банковского вклада.
Договор банковского вклада в пользу гражданина, умершего к моменту заключения договора, либо не существующего на этот момент юридического лица ничтожен.
2. В случае письменного отказа третьего лица от прав вкладчика лицо, заключившее договор банковского вклада, может воспользоваться правами вкладчика в отношении внесенных им во вклад денег.
3. При внесении в пользу третьего лица условного вклада, оно вправе распоряжаться им только при соблюдении предусмотренных договором банковского вклада условий. До наступления этих условий третье лицо может распоряжаться вкладом лишь по письменному разрешению лица, внесшего вклад .
Условие по вкладу должно быть письменно зафиксировано в договоре банковского вклада, не противоречить законодательным актам и не иметь неясностей, затрудняющих выдачу вклада.
Для получения условного вклада третье лицо представляет банку документы, подтверждающие выполнение установленного условия.
Лицо, внесшее условный вклад в пользу третьего лица, имеет право: изменить установленное им условие в том случае, если третьим лицом не представлен документ, подтверждающий выполнение этого условия; распорядиться вкладом в случае невыполнения третьим лицом условия, указанного при внесении вклада, либо его смерти до выполнения условия, предусмотренного договором банковского вклада.
4. Правила о договоре в пользу третьего лица ( настоящего Кодексастатья 391 ) применяются к договору банковского вклада в пользу третьего лица, если это не противоречит правилам настоящей статьи.
Сноска. Статья 764 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 765. Возврат банковских вкладов
1. Банк обязан выдать вклад или его часть по первому требованию вкладчика: 1) по вкладам до востребования - по поступлении требований вкладчика;
2) по срочным и сберегательным вкладам - по наступлении срока, предусмотренного договором банковского вклада;
3) по условным вкладам - при наличии обстоятельств, с наступлением которых договор банковского вклада связывает возврат вклада.
2. Вкладчик имеет право на досрочный частичный и (или) полный возврат срочного вклада.
Вкладчик имеет право на досрочный полный возврат сберегательного вклада. 2-1. Банк обязан выдать срочный вклад или его часть не позднее семи
календарных дней с момента поступления требования вкладчика. Банк обязан выдать сберегательный вклад не ранее тридцати календарных
дней с момента поступления требования вкладчика. 3. По условным вкладам вкладчик имеет право на возврат вклада до
наступления обстоятельств, с которыми договор банковского вклада связывает возврат вклада. При этом банк обязан выдать вклад или его часть в сроки, предусмотренные пунктом 2 настоящей статьи.
4. Положение договора банковского вклада об отказе вкладчика от права досрочного получения срочного вклада, а также условного вклада до наступления предусмотренных условий является ничтожным.
5. Вклад, внесенный в иностранной валюте, должен быть возвращен в этой же валюте, если иное не предусмотрено законодательными актами, договором банковского вклада или дополнительным соглашением сторон.
6. В случае невыполнения банком требования вкладчика о возврате вклада или его части в сроки, предусмотренные пунктами 2, 3 настоящей статьи, выплата вознаграждения продолжается на условиях, предусмотренных договором банковского вклада.
6-1. Правила настоящей статьи не распространяются на вклады, являющиеся предметом залога, а также вклады, возврат которых ограничен требованиями Закона Республики Казахстан "О жилищных отношениях".
7. Выдача банковского вклада может быть приостановлена по основаниям и в порядке:
1) предусмотренным Республики Казахстан "О противодействииЗаконом легализации (отмыванию) доходов, полученных преступным путем, и финансированию терроризма";
2) предусмотренным Республики Казахстан "О банках и банковскойЗаконом деятельности в Республике Казахстан", при применении мер по урегулированию
банка, отнесенного к категории неплатежеспособных банков, либо лишении банка лицензии.
Сноска. Статья 765 с изменениями, внесенными законами РК от 29.03.2000 N 42; от 28.08.2009 N 192-IV (вводится в действие с 08.03.2010); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 21.06.2012 № 19-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 10.06.2014 № 206-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 12.12.2017 № 114-VI (вводится в действие с 01.01.2018); от 02.07.2018 № 168- VІ (порядок введения в действие см. ст. 2).
Статья 766. Обеспечение возврата банковского вклада
Средства и способы, которые банк обязан использовать для обеспечения возврата полученных им вкладов, определяются законодательными актами, нормативными правовыми актами Национального Банка Республики Казахстан и договором банковского вклада.
Статья 767. Оплата услуг банка за совершение операций по банковскому вкладу
Вкладчик оплачивает услуги банка по совершению операций по банковскому вкладу в порядке, предусмотренном договором.
Глава 39. Хранение Параграф 1. Общие положения о хранении
Статья 768. Договор хранения
1. По договору хранения одна сторона (хранитель) обязуется хранить вещь, переданную ей другой стороной (поклажедателем), и возвратить эту вещь в сохранности.
2. Договор хранения признается заключенным с момента передачи вещи на хранение.
3. На охрану недвижимого имущества действие настоящей главы не распространяется.
Статья 769. Договор о принятии вещи на хранение
1. Хранитель, осуществляющий хранение в качестве предпринимательской деятельности, может взять на себя по договору обязательство принимать на хранение вещи поклажедателя и хранить переданные поклажедателем вещи в соответствии с положениями настоящей главы.
2. Хранитель, взявший на себя по договору обязательство принять вещь на хранение, не вправе требовать передачи ему этой вещи на хранение. Однако поклажедатель, не передавший вещь на хранение в предусмотренный договором срок, несет ответственность перед хранителем за убытки, причиненные в связи с несостоявшимся хранением, если иное не предусмотрено законодательными актами или договором.
3. Поклажедатель освобождается от ответственности за непередачу вещи на хранение, если он заявит об отказе от услуг хранителя в разумный срок.
4. Если иное не предусмотрено договором, хранитель освобождается от обязанности принять вещь на хранение в случаях, когда в обусловленный договором срок вещь не будет передана на хранение, а когда этот срок не определен - по истечении тридцати суток со дня заключения договора.
Статья 770. Обязанность принять вещь на хранение
Хранитель, осуществляющий хранение в силу своей предпринимательской деятельности, не вправе отказать в принятии вещи на хранение при наличии технических возможностей, если иное не установлено законодательными актами. В таких случаях договоры хранения признаются публичными (статья 387 настоящего Кодекса).
Статья 771. Хранение вещей с обезличением
1. При хранении вещей с обезличением принятые на хранение вещи могут смешиваться с вещами того же рода и качества других поклажедателей. Поклажедателю возвращается равное или обусловленное сторонами количество вещей того же рода и качества.
2. При хранении вещей с обезличением вещи должны быть обособлены от вещей такого же рода и качества, если это установлено законодательными актами либо соглашением сторон.
Статья 772. Форма договора хранения
1. Договор хранения должен быть заключен в письменной форме, за исключением сдачи вещей на краткосрочное хранение в камеры хранения и гардеробы вокзалов, аэропортов, учреждений, предприятий, театров, музеев, стадионов, столовых и т.п. с выдачей хранителем номеров, жетонов и других легитимационных знаков.
2. Письменная форма договора считается соблюденной, если принятие вещей на хранение удостоверено хранителем путем выдачи поклажедателю сохранной расписки, квитанции, свидетельства, иного документа, подписанного хранителем .
3. Договор хранения в виде бытовой услуги может заключаться в устной форме.
4. В случае спора о тождестве вещи, принятой на хранение, и вещи, возвращаемой хранителем, допускаются свидетельские показания.
5. Сдача вещи на хранение при чрезвычайных обстоятельствах (пожаре, наводнении и других) при отсутствии письменной формы договора может доказываться свидетельскими показаниями, вне зависимости от стоимости сданной на хранение вещи.
Статья 773. Срок хранения
1. Если вещь сдана на хранение до востребования или без указания срока, хранитель вправе по истечении обычного при данных обстоятельствах срока хранения вещи потребовать принятия поклажедателем вещи обратно, но обязан предоставить поклажедателю разумный срок, достаточный для принятия вещи.
2. Поклажедатель вправе в любое время потребовать вещь от хранителя, даже если по договору был предусмотрен иной срок хранения. Однако в этом случае поклажедатель обязан возместить хранителю убытки, вызванные досрочным прекращением обязательства, если договором не предусмотрено иное.
Статья 774. Вознаграждение и возмещение расходов хранителю
1. Размер вознаграждения хранителю по договору хранения определяется соглашением сторон. В установленных законодательными актами случаях размер вознаграждения может определяться таксами, ставками, тарифами.
2. Соглашением сторон или законодательными актами может быть обусловлена безвозмездность хранения. При безвозмездном хранении поклажедатель обязан возместить хранителю необходимые, фактически произведенные расходы для сохранения вещи.
3. Если иное не предусмотрено законодательными актами или соглашением сторон, вознаграждение за хранение должно быть выплачено хранителю по
окончании хранения, а если оплата предусмотрена по периодам, - по истечении каждого периода. Если хранение прекращается до истечения определенного в договоре срока хранения, то хранителю должна быть выплачена соразмерная часть вознаграждения.
4. Если по истечении предусмотренного договором срока находящаяся на хранении вещь не взята обратно поклажедателем, то он обязан уплатить хранителю вознаграждение за дальнейшее хранение вещи в прежнем размере.
5. Если иное не предусмотрено договором, расходы по хранению включаются в сумму вознаграждения. Предполагается, что чрезвычайные расходы в сумму вознаграждения или в состав расходов, предусмотренных договором, не включаются.
Статья 775. Обязанности хранителя по обеспечению сохранности вещи
1. Хранитель обязан принять все предусмотренные договором, а также другие необходимые меры для обеспечения сохранности переданной ему вещи.
2. Если хранение осуществляется безвозмездно, хранитель обязан заботиться о принятой на хранение вещи, как о своей вещи.
3. Вещь должна быть возвращена в том состоянии, в котором она была принята на хранение, с учетом ее естественного ухудшения или естественной убыли.
4. Хранитель не вправе пользоваться вещью, за исключением случаев, когда это предусмотрено договором, а также если пользование вещью необходимо для обеспечения ее сохранности.
5. Одновременно с возвратом вещи хранитель обязан передать плоды и доходы, полученные за время ее хранения, если иное не предусмотрено договором.
Статья 776. Изменение условий хранения
1. При необходимости изменения условий хранения вещи, предусмотренных договором хранения, хранитель обязан незамедлительно уведомить об этом поклажедателя и дождаться его ответа.
2. В случае, когда возникла опасность утраты или повреждения вещи, хранитель обязан изменить предусмотренные договором способ и место хранения, не дожидаясь ответа поклажедателя (пункт 1 настоящей статьи).
3. Если вещь во время хранения подверглась порче либо возникли другие обстоятельства, не позволяющие обеспечить ее сохранность, и принятия мер со стороны поклажедателя ожидать нельзя, хранитель вправе реализовать вещь или часть ее с возмещением своих расходов по хранению и реализации.
Статья 777. Передача вещи на хранение третьему лицу
1. Если законодательными актами или договором не предусмотрено иное, хранитель не вправе без согласия поклажедателя передавать вещь на хранение третьему лицу, если только в этом не возникла необходимость в интересах поклажедателя и хранитель лишен возможности получить его согласие. О передаче вещи третьему лицу хранитель обязан незамедлительно уведомить поклажедателя.
2. Хранитель отвечает за действия третьего лица, которому он передал вещь на хранение.
Статья 778. Ответственность хранителя за несохранность вещи
Хранитель отвечает за утрату, недостачу или повреждение вещи, принятой на хранение. Он освобождается от ответственности, если докажет, что утрата, недостача или повреждение вещи произошли не по его вине.
Статья 779. Ответственность хранителя-предпринимателя
1. Лицо, осуществляющее хранение в силу своей предпринимательской деятельности, освобождается от ответственности за несохранность вещи лишь в случаях, когда утрата, недостача или повреждение вещи вызваны непреодолимой силой либо свойствами самой вещи, либо умыслом или грубой неосторожностью поклажедателя.
2. Если по истечении срока хранения, предусмотренного в договоре, или срока, указанного хранителем в порядке, установленном в настоящегостатье 773 Кодекса, вещь не будет взята обратно поклажедателем, хранитель отвечает за утрату, недостачу или повреждение этой вещи лишь при наличии с его стороны умысла или грубой неосторожности.
Статья 780. Размер ответственности хранителя
1. Убытки, причиненные поклажедателю утратой, недостачей или повреждением вещи, возмещаются хранителем в соответствии со статьей 350 настоящего Кодекса, если законодательными актами или договором не предусмотрено иное.
2. Если при сдаче на хранение была произведена оценка вещи, которая указана в договоре или ином письменном документе, выданном хранителем, ответственность хранителя определяется, исходя из суммы оценки.
3. При безвозмездном хранении убытки, причиненные поклажедателю утратой, недостачей или повреждением вещи, возмещаются:
1) за утрату или недостачу вещи - в размере стоимости утраченной или недостающей вещи;
2) за повреждение вещи - в размере суммы, на которую понизилась ее стоимость.
4. Если в результате повреждения, за которое хранитель отвечает, качество вещи изменилось настолько, что она не может быть использована по первоначальному назначению, поклажедатель вправе от нее отказаться и потребовать от хранителя возместить стоимость этой вещи, а также возмещения других убытков, если иное не предусмотрено законодательными актами или договором.
Статья 781. Последствия нарушения сроков получения вещи
1. Поклажедатель обязан по истечении срока, указанного в статье 773 настоящего Кодекса, взять обратно сданную на хранение вещь.
2. При уклонении поклажедателя от получения своей вещи хранитель вправе требовать после предупреждения не менее чем за месяц реализации вещи в порядке, предусмотренном РеспубликиГражданским процессуальным кодексом Казахстан, если иное не предусмотрено законодательными актами или договором .
3. Суммы, вырученные от реализации вещи, передаются поклажедателю за вычетом сумм, причитающихся хранителю.
Статья 782. Возмещение убытков, причиненных хранителю
Поклажедатель обязан возместить хранителю убытки, вызванные свойствами вещи, если хранитель, принимая вещь на хранение, не знал и не должен был знать об этих свойствах.
Статья 783. Применение общих положений о хранении к отдельным его видам
Общие положения о хранении применяются к отдельным его видам, если правилами об отдельных видах хранения, предусмотренными -статьями 784 802 настоящего Кодекса и (или) другими законодательными актами, не установлено иное.
Параграф 2. Отдельные виды хранения
Статья 784. Хранение в ломбарде
1. Договор хранения вещи в ломбарде оформляется выдачей ломбардом именной сохранной квитанции.
2. Вещь, сдаваемая на хранение в ломбард, подлежит оценке по соглашению сторон в соответствии с ценами на вещь такого рода и качества, обычно устанавливаемыми в торговле в момент и в месте ее принятия на хранение.
3. Ломбард обязан страховать в пользу поклажедателя принятую на хранение вещь в полной сумме ее оценки, произведенной в соответствии с пунктом 2 настоящей статьи.
Статья 785. Невостребованная из ломбарда вещь
1. При уклонении поклажедателя от обратного получения вещи ломбард обязан хранить ее в течение трех месяцев. По истечении этого срока невостребованная вещь может быть продана ломбардом в порядке, установленном пунктом 2 настоящего Кодекса.статьи 781
2. Из суммы, вырученной от продажи вещи, погашаются плата за хранение и иные причитающиеся ломбарду платежи. Остаток суммы возвращается ломбардом владельцу сохранной квитанции по ее предъявлении.
Статья 786. Хранение ценностей в банке
1. Банк может принимать на хранение ценные бумаги, драгоценные металлы, камни и иные ценности, а также документы.
2. Договор хранения ценностей в банке оформляется выдачей банком поклажедателю именного сохранного документа, предъявление которого является основанием для выдачи банком хранимых ценностей поклажедателю или его представителю.
3. Договор хранения ценностей с использованием индивидуального банковского сейфа (ячейки сейфа, отдельного помещения для хранения) может заключаться путем совершения банком действий по принятию ценностей на хранение и выдачи поклажедателю ключа от сейфа, карточки, идентифицирующей поклажедателя, иного знака или документа, которые удостоверяют право предъявителя на доступ к сейфу и получение из него ценностей.
4. Если иное не предусмотрено договором, поклажедатель вправе в любое время забирать ценности из сейфа, возвращать их обратно, работать с хранимыми документами. Банк при этом имеет право учета получения и возврата ценностей поклажедателем.
5. При получении поклажедателем, в том числе временном, части ценностей из сейфа банк несет ответственность за сохранность оставшейся части ценностей .
6. Установленные настоящей статьей правила хранения ценностей в банковском сейфе не распространяются на случаи, когда банк предоставляет свой сейф (ячейку сейфа, отдельное помещение для хранения) другому лицу в пользование на условиях имущественного найма.
Статья 787. Хранение в камерах хранения транспортных организаций
1. Находящиеся в ведении транспортных организаций камеры хранения обязаны принимать на хранение вещи пассажиров и иных граждан, независимо от наличия у них проездных документов. Договор хранения в камерах хранения транспортных организаций признается публичным (статья 387 настоящего Кодекса).
2. В подтверждение приема вещи на хранение в камеры хранения (кроме автоматических) поклажедателю выдается квитанция или номерной жетон. В случае утраты квитанции или жетона сданные в камеру хранения вещи выдаются поклажедателю по предъявлении доказательств принадлежности ему этих вещей.
3. Сумма убытков, понесенных поклажедателем вследствие утраты, недостачи или повреждения вещи, сданной в камеру хранения, выплачивается поклажедателю в суточный срок, если при сдаче вещи на хранение была произведена ее оценка либо если стороны пришли к соглашению относительно суммы подлежащих возмещению убытков.
4. Вещи могут быть сданы в камеры хранения на срок в пределах, установленных специальными правилами или соглашением сторон. Вещи, не востребованные в указанные сроки, камера хранения обязана хранить еще в течение трех месяцев. По истечении этого срока невостребованные вещи могут быть проданы, а вырученные от продажи суммы распределены в соответствии со
настоящего Кодекса.статьей 781
Статья 788. Хранение в гардеробах организаций
1. Хранение в гардеробах организаций предполагается безвозмездным, если вознаграждение за хранение не оговорено при сдаче вещи на хранение.
2. В подтверждение приема вещи на хранение в гардероб хранитель выдает поклажедателю номерной жетон или иной знак, подтверждающий принятие вещи на хранение.
3. Сданная в гардероб вещь выдается предъявителю жетона. При этом хранитель не обязан проверять полномочия предъявителя жетона на получение
вещи. Однако хранитель вправе задержать возврат вещи предъявителю жетона, если у него возникли сомнения в принадлежности жетона его предъявителю.
4. Хранитель вправе выдать вещь из гардероба и тогда, когда поклажедатель утерял жетон, но факт сдачи им вещи в гардероб или принадлежности ее поклажедателю не вызывает сомнений у хранителя или доказан поклажедателем.
Статья 789. Хранение в гостинице
1. Гостиница отвечает как хранитель и без особого о том соглашения за утрату или повреждение вещей, за исключением денег, иных валютных ценностей и ценных бумаг, внесенных в гостиницу проживающим в ней лицом, кроме случаев, когда утрата или повреждение произошли вследствие непреодолимой силы, свойств самой вещи либо по вине самого проживающего, сопровождающих его лиц или его посетителей.
2. Гостиница отвечает за утрату денег, иных валютных ценностей и ценных бумаг только при условии, если они были приняты на хранение.
3. Проживающее в гостинице лицо, обнаружившее утрату или повреждение своих вещей, обязано без промедления заявить об этом администрации гостиницы. В противном случае гостиница освобождается от ответственности за несохранность вещей.
4. Гостиница не освобождается от ответственности за несохранность вещей проживающих в ней лиц, даже если она сделает объявление о том, что не принимает на себя этой ответственности.
5. Правила настоящей статьи применяются также в отношении хранения в мотелях, домах отдыха, санаториях, общежитиях и тому подобных организациях, а также в организациях, имеющих специально отведенные места для хранения верхней одежды, головных уборов и иных подобных вещей граждан, посещающих организацию.
Статья 790. Хранение спорных вещей (секвестр)
1. По договору о секвестре двое или несколько лиц, между которыми возник спор о праве на вещь, передают спорную вещь третьему лицу, которое обязуется по разрешении спора возвратить вещь тому лицу, которому она будет присуждена по решению суда либо по соглашению всех спорящих лиц ( договорный секвестр).
2. Спорная вещь может быть передана на хранение в порядке секвестра по решению суда (судебный секвестр).
Хранителем по судебному секвестру может быть как лицо, назначенное судом, так и лицо, определяемое по взаимному согласию спорящих сторон. В
обоих случаях требуется согласие хранителя, если иное не предусмотрено законодательными актами.
3. На хранение в порядке секвестра могут быть переданы как движимые, так и недвижимые вещи.
Параграф 3. Хранение на товарном складе
Статья 791. Товарный склад
Товарным складом признается коммерческая организация, осуществляющая хранение товаров и оказывающая связанные с хранением услуги в качестве предпринимательской деятельности.
Статья 792. Товарный склад общего пользования
1. Товарный склад признается складом общего пользования, если в соответствии с законодательными актами он не отнесен к складам, которые могут принимать товары на хранение от ограниченного круга лиц.
2. Договор складского хранения, заключаемый товарным складом общего пользования, признается публичным договором ( настоящего Кодекса).статья 387
Статья 793. Обязанности товарного склада
1. Товарный склад обязан соблюдать условия (режим) хранения, установленные в стандартах, технических условиях, технологических инструкциях, инструкциях по хранению, правилах хранения отдельных видов товаров, иных обязательных для склада специальных нормативных документах.
2. Товарный склад обязан произвести за свой счет осмотр товаров при приеме на хранение.
3. Товарный склад обязан предоставить товаровладельцу возможность осмотра товаров или их образцов, если хранение осуществляется с обезличением, взятия проб и принятия мер, необходимых для обеспечения сохранности товаров.
4. В случае, когда для обеспечения сохранности товаров требуется срочно изменить условия хранения, товарный склад вправе принять требуемые срочные меры самостоятельно. Он обязан уведомить товаровладельца о принятых мерах.
5. При обнаружении повреждений товара склад обязан немедленно составить акт и известить товаровладельца по адресу, заявленному им товарному складу.
Статья 794. Требования товаровладельца к товарному складу
Если иное не предусмотрено договором, товаровладелец обязан заявить товарному складу об утрате, недостаче или повреждениях товара, возникших в результате ненадлежащего хранения, при получении товара со склада, а о скрытых повреждениях - в течение обычного срока, необходимого для их обнаружения. Если о повреждениях и недостаче товара в соответствующие сроки складу не будет заявлено, товарный склад не несет ответственности за убытки, за исключением случаев, когда убытки причинены вследствие его умысла или грубой неосторожности.
Статья 795. Возмещение расходов товарного склада по хранению
Склад имеет право на возмещение предусмотренных договором или установленных законодательными актами ставок расходов по дополнительным операциям, осуществленным в интересах поклажедателя (страхование товаров, погрузо-разгрузочные работы, уплата таможенных пошлин и т.д.). Это право обеспечивается правом склада на удержание хранимого товара.
Статья 796. Отказ товарного склада от договора хранения
Товарный склад вправе отказаться от исполнения договора хранения в случаях, когда поклажедатель утаил опасный характер товара, что грозит нанесением существенного ущерба.
Статья 797. Складские документы
1. Товарные склады могут выдавать в подтверждение принятия товаров на хранение следующие складские документы:
1) простое складское свидетельство; 2) двойное складское свидетельство.
1-1. В случаях, предусмотренных законодательными актами Республики Казахстан, товарные склады обязаны выдавать двойные или простые складские свидетельства в подтверждение принятия на хранение товаров с обезличением.
2. Двойное складское свидетельство, каждая его часть и простое складское свидетельство являются ценными бумагами.
3. Двойное и простое складские свидетельства могут быть предметами залога. Сноска. Статья 797 с изменениями, внесенными Законом РК от 12 января
2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 798. Простое складское свидетельство
1. Простое складское свидетельство выдается на предъявителя. 2. Простое складское свидетельство должно содержать сведения,
предусмотренные , , - пункта 2 статьи 799 настоящегоподпунктами 2) 3) 5) 10) Кодекса, а также указание на то, что оно выдано на предъявителя.
Статья 799. Двойное складское свидетельство
1. Двойное складское свидетельство состоит из складского свидетельства и залогового свидетельства (варранта), которые
идентичны по содержанию и при необходимости отделимы одно от другого. 2. В каждой части двойного складского свидетельства должны быть указаны: 1) наименование соответствующей части двойного складского свидетельства; 2) наименование и адрес склада, принявшего товар на хранение; 3) текущий номер складского свидетельства по реестру склада;
4) наименование организации либо имя гражданина, от которого принят товар на хранение, а также место нахождения (место жительства) товаровладельца;
5) наименование и количество товара, число товарных мест; 6) сумма принятого товара, если иное не установлено законодательными
актами Республики Казахстан; 7) срок, на который товар принят на хранение, если таковой устанавливается; 8) тарифы и порядок оплаты хранения; 9) дата выдачи складского свидетельства;
10) подпись уполномоченного лица и печать товарного склада (при ее наличии).
Законодательными актами Республики Казахстан могут быть установлены дополнительные требования к форме и содержанию двойного складского свидетельства.
Сноска. Статья 799 с изменениями, внесенными законами РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 29.12.2014 № 269-V (вводится в действие с 01.01.2015).
Статья 800. Права держателя двойного складского свидетельства на товар
1. Держатель двойного складского свидетельства имеет право распоряжения хранящимся на складе товаром в полном объеме.
2. Держатель складского свидетельства, отделенного от залогового свидетельства, вправе распоряжаться товаром, но не может взять его со склада до погашения кредита, выданного по залоговому свидетельству. Держатель складского свидетельства может осуществить передачу права собственности на
складированный товар путем учинения передаточной надписи (индоссамента) и вручения самого документа, но без перемещения товара.
3. Покупатель, получивший по индоссаменту складское свидетельство с неотделенным от него залоговым свидетельством, становится собственником складского товара, свободного от залога. При приобретении складского свидетельства без залогового свидетельства предполагается, что право собственности на товар обременено залоговым правом. Сведения об условиях залога (о сумме и сроке установления залогового права на товар) могут быть получены в реестре склада, открытом для обозрения заинтересованных лиц.
4. Держатель залогового свидетельства имеет залоговое право на товар в размере выданного по этому свидетельству займа и вознаграждения по нему. При установлении залоговых прав на товары об этом делается отметка на складском свидетельстве.
5. Покупатель или продавец может освободить товар от залога, внеся соответствующую сумму, обеспечиваемую залогом, залогодержателю (кредитору ) или товарному складу, который обязан передать ее законному держателю залогового свидетельства.
6. Держатель залогового свидетельства в случае неудовлетворения в срок его требования, обеспеченного залогом, вправе продать в установленном законодательными актами порядке заложенный ему по залоговому свидетельству товар и покрыть свое требование преимущественно перед другими кредиторами залогодателя. При недостаточности вырученной суммы держатель залогового свидетельства может взыскать недополученную часть со всех индоссантов, несущих солидарную ответственность за оплату обеспеченного залоговым свидетельством требования.
Сноска. Статья 800 с изменениями, внесенными Законом РК от 12 января 2007 года N 225 (вводится в действие со дня его официального опубликования).
Статья 801. Передача складского и залогового свидетельств
Складское свидетельство и залоговое свидетельство могут передаваться вместе или порознь по передаточным надписям (индоссаментам).
Статья 802. Выдача товара по двойному складскому свидетельству
1. Товарный склад выдает товар держателю складского и залогового свидетельства (двойного складского свидетельства) в обмен на оба эти свидетельства вместе.
Держателю складского свидетельства, который не имеет залогового свидетельства, но внес сумму долга по нему, товар выдается складом не иначе
как в обмен на складское свидетельство и при условии взноса всей суммы долга по залоговому свидетельству.
2. Держатель складского и залогового свидетельств вправе требовать выдачи товара по частям. При этом в обмен на первоначальные свидетельства ему выдаются новые свидетельства на товары, оставшиеся на складе.
3. Товарный склад, вопреки требованиям настоящей статьи выдавший товар держателю складского свидетельства, не имеющему залогового свидетельства и не внесшему сумму долга по нему, несет ответственность перед держателем залогового свидетельства за платеж всей причитающейся по нему суммы.
Глава 40. Страхование
Статья 803. Договор страхования
1. По договору страхования одна сторона (страхователь) обязуется уплатить страховую премию, а другая сторона (страховщик) обязуется при наступлении страхового случая осуществить страховую выплату страхователю или иному лицу, в пользу которого заключен договор (выгодоприобретателю), в пределах определенной договором суммы (страховой суммы).
Законодательными актами Республики Казахстан могут быть предусмотрены случаи осуществления иных выплат в порядке и на условиях, предусмотренных договором страхования.
2. Страхование осуществляется на основе договора страхования. Сноска. Статья 803 с изменениями, внесенными законами РК от 18.12.2000 N
128; от 05.07.2006 N 164 (порядок введения в действие см. ст. 2); от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2).
Статья 804. Страховые отношения, регулируемые настоящим Кодексом
Настоящим Кодексом регулируются отношения между страховщиком и страхователем, а также их отношения с застрахованными и выгодоприобретателями, которые возникают в процессе заключения и исполнения договора страхования.
Статья 805. Формы страхования
1. Формами страхования являются: 1) по степени обязательности - добровольное и обязательное; 2) по объекту страхования - личное и имущественное;
3) по основаниям осуществления страховой выплаты - накопительное и ненакопительное.
2. В целях лицензирования страховой деятельности законодательными актами может быть предусмотрена иная классификация.
Сноска. Статья 805 - в редакции Закона РК от 18 декабря 2000 г. N 128.
Статья 806. Обязательное и добровольное страхование
1. Обязательное страхование: 1) страхование, осуществляемое в силу требований законодательных актов,
виды, условия и порядок которого устанавливаются отдельными законодательными актами Республики Казахстан, регулирующими обязательные виды страхования;
2) страхование, при котором требование об обязательном страховании, виды и минимальные условия страхования (в том числе объект страхования, страховые риски и минимальные размеры страховых сумм) устанавливаются законодательными актами Республики Казахстан, а иные условия и порядок страхования определяются соглашением сторон (вмененное страхование).
2. Обязанность страховать свою жизнь или здоровье не может быть возложена на гражданина ни законодательными актами Республики Казахстан, ни договором.
Обязательное страхование осуществляется за счет страхователя. Обязательное страхование, виды, условия и порядок которого
устанавливаются отдельным законодательным актом Республики Казахстан, регулирующим обязательный вид страхования, может быть введено при условии экономической обоснованности, массовости и социально-общественной значимости.
3. В случаях, когда обязанность страхования не вытекает из законодательного акта Республики Казахстан, а основана на договоре, такое страхование не является обязательным и не влечет последствий, предусмотренных статьей 808 настоящего Кодекса.
4. При заключении договора обязательного страхования, виды, условия и порядок которого установлены отдельным законодательным актом Республики Казахстан, регулирующим обязательный вид страхования, страхователь обязан заключить договор со страховщиком на условиях, предписанных данным законодательным актом Республики Казахстан.
При вмененном страховании договор со страховщиком заключается на условиях, определенных соглашением сторон, с соблюдением минимальных условий, установленных законодательными актами Республики Казахстан.
5. Договор обязательного страхования, виды, условия и порядок которого установлены отдельным законодательным актом Республики Казахстан, регулирующим обязательный вид страхования, может быть заключен только со страховщиком, имеющим лицензию на осуществление данного вида страхования . Заключение договора обязательного страхования, виды, условия и порядок которого установлены отдельным законодательным актом Республики Казахстан , регулирующим обязательный вид страхования, для страховщика, имеющего лицензию на осуществление данного вида страхования, является обязательным.
6. Добровольное страхование – страхование, осуществляемое в силу волеизъявления сторон.
Виды, условия и порядок добровольного страхования определяются соглашением сторон.
Сноска. Статья 806 в редакции Закона РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 807. Объект страхования
1. Объектами имущественного и личного страхования могут быть любые имущественные интересы граждан и юридических лиц, в том числе связанные с:
1) дожитием граждан до определенного возраста или срока, установленного договором страхования, смертью, наступлением определенных событий в жизни граждан;
2) причинением вреда жизни и здоровью граждан в результате несчастных случаев и иных событий, заболеваний;
3) владением, пользованием и распоряжением имуществом; 4) обязанностью возместить вред, причиненный другим лицам, в том числе в
результате нарушения договора (обязательств). Объект страхования по обязательному страхованию определяется
законодательными актами Республики Казахстан. 2. Не подлежат страхованию противоправные имущественные интересы
страхователя. 3. Договоры страхования, объектом которых выступают имущественные
интересы, предусмотренные пунктом 2 настоящей статьи, либо в которых отсутствует объект страхования, являются ничтожными.
Сноска. Статья 807 с изменениями, внесенными законами РК от 20.02.2006 N 128 (порядок введения в действие см. ст.2); от 07.05.2007 N 244; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в
действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 808. Последствия нарушения правил об обязательном страховании
1. Лицо, в пользу которого в соответствии с законодательными актами должно быть осуществлено обязательное страхование, вправе, если ему стало известно, что оно не застраховано, потребовать в судебном порядке страхования от лица, на которое возложена данная обязанность.
2. Если лицо, на которое возложена обязанность страхования, не осуществило его или заключило договор страхования на условиях, ухудшающих положение застрахованного по сравнению с тем, которое предусмотрено законодательными актами, это лицо при наступлении страхового случая несет ответственность перед застрахованным на тех же условиях, на каких должна была бы быть осуществлена страховая выплата при надлежащем страховании.
3. Лицо, на которое законодательными актами возложена обязанность выступить в качестве страхователя, вправе требовать в судебном порядке понуждения страховщика, обязанного в соответствии с статьи 806пунктом 5 настоящего Кодекса осуществить страхование, но уклоняющегося от него, к заключению договора страхования на условиях, предусмотренных законодательными актами.
4. Уклонение от страхования лица, обязанного его осуществить в качестве страхователя, а также страховой организации, обязанной выступить в качестве страховщика, влечет ответственность, предусмотренную законодательными актами.
Сноска. В статью 808 внесены изменения - Законом РК от 18 декабря 2000 г. N 128.
Статья 809. Личное и имущественное страхование
1. К личному страхованию относится страхование жизни, здоровья, трудоспособности и иных связанных с личностью гражданина имущественных интересов.
По договору личного страхования застрахован может быть как сам страхователь, так и другое названное в договоре лицо (застрахованный).
2. К имущественному страхованию относится страхование имущества и связанных с ним имущественных интересов.
3. При страховании имущества страхуется риск утраты (гибели), недостачи или повреждения имущества и иных имущественных благ и прав, предусмотренных настоящего Кодекса.статьей 115
4. Договор страхования имущества, заключенный при отсутствии у страхователя или выгодоприобретателя интереса в сохранении застрахованного имущества, может быть признан судом недействительным.
5. При страховании гражданско-правовой ответственности страхуется риск ответственности по обязательствам, возникающим вследствие причинения вреда жизни, здоровью или имуществу третьих лиц, а также ответственности по обязательствам, возникающим из договоров.
Сноска. Статья 809 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 20.02.2006 N 128 (порядок введения в действие см. ст.2); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 809-1. Накопительное страхование
1. Накопительным страхованием является страхование, предусматривающее осуществление страховой выплаты при наступлении страхового случая, в том числе по истечении установленного договором страхования периода либо иного события, предусмотренного договором страхования, в зависимости от того, какое из них наступит первым.
2. Ненакопительным страхованием является страхование, предусматривающее осуществление страховой выплаты только при наступлении страхового случая, обладающего признаками, предусмотренными пунктом 3
настоящего Кодекса.статьи 817 3. Договор аннуитетного страхования - договор страхования, согласно
которому страховщик обязан осуществлять страховую выплату в виде периодических платежей в пользу выгодоприобретателя в течение установленного договором срока.
4. Договоры накопительного страхования могут заключаться исключительно по личному страхованию.
5. Договор аннуитетного страхования относится к договорам накопительного страхования.
Сноска. Кодекс дополнен статьей 809-1 в соответствии с Законом РК от 18.12.2000 № 128; с изменениями, внесенными законами РК от 20.02.2006 № 128 (порядок введения в действие см. ст.2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 810. Страхование предпринимательского риска
Сноска. Статья исключена - Законом РК от 20 февраля 2006 года N (128 порядок введения в действие см. ).ст.2
Статья 811. Страхование гражданско-правовой ответственности за причинение вреда
Сноска. Статья исключена - Законом РК от 20 февраля 2006 года N (128 порядок введения в действие см. ).ст.2
Статья 812. Страхование гражданско-правовой ответственности по договору
Сноска. Статья исключена - Законом РК от 20 февраля 2006 года N (128 порядок введения в действие см. ).ст.2
Статья 813. Страхователь
1. Страхователь - лицо, заключившее договор страхования со страховщиком. 2. Страхователями могут быть юридические лица и граждане. 3. Страхователь свободен в выборе страховщика как по добровольным, так и
по обязательным формам страхования, если иное не установлено отдельными законодательными актами Республики Казахстан, регулирующими обязательные виды страхования.
Сноска. Статья 813 с изменениями, внесенными законами РК от 18.12.2000 № 128; от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 814. Страховщик
Страховщик - лицо, осуществляющее страхование, то есть обязанное при наступлении страхового случая произвести страховую выплату страхователю или иному лицу, в пользу которого заключен договор (выгодоприобретателю), в пределах определенной договором суммы (страховой суммы).
Страховщиком может быть только юридическое лицо, зарегистрированное в качестве страховой организации и имеющее лицензию на право осуществления страховой деятельности либо общество взаимного страхования в соответствии с законодательным актом Республики Казахстан о взаимном страховании.
Сноска. В статью 814 внесены изменения - Законом РК от 18 декабря 2000 г. N 128; от 5 июля 2006 года N 164 (порядок введения в действие см. ст.2).
Статья 815. Застрахованный
1. Застрахованный - лицо, в отношении которого осуществляется страхование .
Если иное не предусмотрено договором, страхователь одновременно является застрахованным.
2. Законодательными актами на страхователя может быть возложена обязанность осуществления страхования третьего лица. При добровольном страховании страхователь может в договоре страхования определить третье лицо в качестве застрахованного. В этих случаях объектом страхования выступает либо личность застрахованного и связанные с ней его интересы (личное страхование застрахованного), либо имущество застрахованного и имущественные интересы (имущественное страхование застрахованного).
При страховании имущества застрахованный, не являющийся страхователем, должен иметь интерес в сохранении этого имущества.
3. Если по условиям договора на застрахованного, не являющегося страхователем, возлагаются определенные обязанности, страхователь должен получить согласие застрахованного на заключение данного договора.
При обязательном страховании, а также при групповом обезличенном страховании, согласия третьего лица на заключение договора, в котором оно будет определено в качестве застрахованного, не требуется.
При добровольном страховании возражение лица по поводу его личного или имущественного страхования влечет невозможность заключения договора, а если он был уже заключен - расторжение договора.
4. В случае, если на страхователе лежит обязанность страхования третьего лица, данное лицо вправе требовать у страхователя отчета о выполнении этой обязанности, а в случаях, предусмотренных законодательными актами, - получения документа, свидетельствующего о том, что оно является застрахованным.
При невыполнении или ненадлежащем выполнении страхователем своей обязанности по страхованию третьего лица, последнее вправе применить меры, предусмотренные пунктами 1 и 2 настоящего Кодекса.статьи 808
5. В случае, если застрахованным является несовершеннолетний гражданин, его права реализуются в порядке, предусмотренном - настоящегостатьями 22 24 Кодекса.
6. Заключение договора в пользу застрахованного не освобождает страхователя от выполнения обязанностей по этому договору.
Страхование третьего лица осуществляется за счет страхователя.
7. В случае, если застрахованный отказался от получения страховой выплаты, причитающейся ему в соответствии с договором, право на получение страховой выплаты переходит к страхователю.
8. В случае смерти не являющегося страхователем застрахованного, в отношении которого заключен договор личного страхования, не предусматривающий такой случай, этот договор подлежит прекращению, если законодательными актами или договором не предусмотрена замена застрахованного.
Если смерть застрахованного явилась тем страховым случаем, который предусмотрен договором страхования, этот договор исполняется на предусмотренных им условиях.
В случае смерти не являющегося страхователем застрахованного, в отношении которого заключен договор имущественного страхования, права и обязанности застрахованного с согласия страхователя переходят к наследникам того имущества и тех имущественных прав застрахованного, которые были объектом страхования, если законодательными актами или договором не предусмотрено иное.
Если страхователь не согласен на замену умершего застрахованного либо наследники застрахованного не согласны принять его права и обязанности, вытекающие из договора страхования, этот договор подлежит прекращению.
9. На договор страхования в пользу третьего лица (застрахованного) распространяются положения настоящего Кодекса в той части, встатьи 391 которой они не противоречат положениям настоящей статьи.
Сноска. Статья 815 с изменениями, внесенными Законами РК от 18 декабря 2000 г. N 128; от 7 мая 2007 года N 244.
Статья 816. Выгодоприобретатель
1. Выгодоприобретатель - лицо, которое в соответствии с договором страхования или законодательными актами Республики Казахстан является получателем страховой выплаты.
Выгодоприобретателем могут быть как юридическое лицо, так и гражданин. Выгодоприобретатель может назначаться как по личному, так и
имущественному страхованию. При обязательном страховании, виды, условия и порядок которого
устанавливаются отдельным законодательным актом Республики Казахстан, регулирующим обязательный вид страхования, выгодоприобретатель определяется данным законодательным актом Республики Казахстан, при вмененном страховании – законодательными актами Республики Казахстан либо
соглашением сторон. По добровольным видам страхования выгодоприобретатель назначается страхователем.
2. Если иное не предусмотрено законодательными актами Республики Казахстан или договором страхования, выгодоприобретателем является страхователь.
Если страхователь не является застрахованным, то выгодоприобретателем должен быть застрахованный, либо он назначается с письменного согласия застрахованного.
Если выгодоприобретатель в договоре страхования не обозначен, им предполагается застрахованный.
3. (Исключен - от 20 февраля 2006 года N 128). 4. (исключен - N 128 от 18.12.2000 г.)
5. В случае, когда застрахованный одновременно является выгодоприобретателем, на последнего распространяются положения, предусмотренные настоящего Кодекса.статьей 815
6. В случае смерти выгодоприобретателя, не являющегося застрахованным, либо его отказа от прав выгодоприобретателя, права последнего переходят к страхователю.
В случае смерти выгодоприобретателя, являющегося застрахованным, наступают последствия, предусмотренные статьи 815 настоящегопунктом 8 Кодекса.
7. Если смерть застрахованного являлась тем случаем, который предусмотрен договором страхования, то в случае, когда такой застрахованный не является страхователем либо является им, но в договоре не обозначен выгодоприобретатель, выгодоприобретателями признаются наследники застрахованного.
8. При наступлении страхового случая выгодоприобретатель вправе предъявить непосредственно страховщику требование о выплате ему страховой выплаты, предусмотренной договором страхования.
9. Заключение договора в пользу выгодоприобретателя не освобождает страхователя от выполнения обязанностей по этому договору.
Сноска. Статья 816 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 20.02.2006 № 128 (порядок введения в действие см. ст 2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 817. Страховой интерес и страховой случай
Сноска. Заголовок статьи 817 в редакции Закона РК от 02.07.2018 (№ 166-VI вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
1. Договор страхования должен предусматривать наличие страхового интереса.
1-1. Страховой интерес – имущественный интерес страхователя ( застрахованного, выгодоприобретателя) в предотвращении рисков и недопущении наступления страхового случая, за исключением событий, которые могут быть предусмотрены по договору накопительного страхования.
1-2. Страховой случай – событие, с наступлением которого договор страхования предусматривает осуществление страховой выплаты.
2. Виды страховых случаев по обязательному страхованию определяются законодательными актами Республики Казахстан, а по добровольному страхованию - соглашением сторон.
3. Событие, рассматриваемое в качестве страхового случая, должно обладать всеми нижеперечисленными признаками (за исключением событий, которые могут быть предусмотрены по договору накопительного страхования):
вероятности и случайности наступления события; непредсказуемости относительно конкретного времени или места
наступления события, а также размера убытков в результате наступления события;
отсутствия опасности того, что событие неизбежно и объективно должно произойти в пределах действия договора, о чем стороны или, по крайней мере, страхователь заведомо знали или заранее были осведомлены;
наступление события имеет отрицательные, невыгодные экономические последствия для имущественного интереса страхователя (застрахованного, выгодоприобретателя);
наступление события не связано с волеизъявлением и (или) умыслом страхователя (застрахованного, выгодоприобретателя) и не предусматривает цель извлечения выгоды и (или) получения выигрыша (спекулятивный риск).
4. Доказывание наступления страхового случая, а также причиненных им убытков лежит на страхователе (выгодоприобретателе, застрахованном).
Сноска. Статья 817 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 818. Страховые премии
1. Страховая премия – сумма денег, которую страхователь обязан уплатить страховщику за принятие последним обязательств произвести страховую выплату страхователю (выгодоприобретателю) в размере, определенном договором страхования.
Полученные страховщиком от страхователя страховые премии принадлежат ему на праве собственности, за исключением части страховых премий, полученных от страхователей для целей инвестирования, и доходов (убытков), полученных от их инвестирования, по договорам страхования, предусматривающим условие участия страхователя в инвестициях, а также случая, предусмотренного пунктом 3 настоящего Кодекса.статьи 845-1
2. Размеры страховых премий устанавливаются договором. При обязательном страховании размеры страховых премий устанавливаются отдельным законодательным актом Республики Казахстан, регулирующим обязательный вид страхования.
Порядок и сроки уплаты страховых премий определяются договором. При обязательном страховании они могут определяться законодательными актами Республики Казахстан.
3. Стороны при определении размера страховых премий, подлежащих уплате по договору страхования, могут применять разработанные страховщиком страховые тарифы, определяющие ставку страховой премии, взимаемой с единицы страховой суммы с учетом объекта страхования и характера страхового риска.
4. Договором может быть предусмотрена уплата страховой премии в рассрочку в виде периодических страховых взносов.
5. Если договором страхования предусмотрено внесение страховой премии в рассрочку, договором могут быть определены последствия неуплаты в установленные сроки очередных страховых взносов, включая досрочное расторжение договора.
6. Если страховой случай наступил до уплаты определенного страхового взноса, внесение которого просрочено, страховщик вправе при определении размера страховой выплаты зачесть сумму просроченного страхового взноса.
Сноска. Статья 818 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 20.02.2006 N 128 (порядок введения в действие см. ст.2); от 07.05.2007 N 244; от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 819. Страховая сумма
1. Страховая сумма - сумма денег, на которую застрахован объект страхования и которая представляет собой предельный объем ответственности страховщика при наступлении страхового случая.
2. Размеры страховых сумм (за исключением договоров аннуитетного страхования и договоров страхования, предусматривающих условие участия страхователя в инвестициях) устанавливаются договором. При обязательном страховании они не могут быть менее размеров, установленных законодательными актами Республики Казахстан.
3. При страховании имущества страховая сумма не может превышать его действительной стоимости на момент заключения договора (страховой стоимости).
4. Стороны не могут оспаривать стоимость имущества, определенную в договоре страхования, за исключением случаев, когда страховщик докажет, что он был намеренно введен в заблуждение страхователем. Если страховая сумма, определенная договором страхования, превышает страховую стоимость, он является недействительным в той части страховой суммы, которая превышает страховую стоимость на момент заключения договора.
5. (Исключен - от 20 февраля 2006 года N 128 (порядок введения в действие см. ст.2).
Сноска. Статья 819 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 20.02.2006 N 128 (порядок введения в действие см. ст.2); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 820. Страховая выплата
1. Страховая выплата - сумма денег, выплачиваемая страховщиком страхователю (выгодоприобретателю) в пределах страховой суммы при наступлении страхового случая либо при наступлении срока, определенного в договоре накопительного страхования.
Страховая выплата осуществляется единовременным платежом, за исключением страховых выплат по договорам аннуитетного страхования.
2. Порядок определения размеров страховой выплаты устанавливается договором. По обязательному страхованию порядок определения размеров страховой выплаты устанавливается отдельным законодательным актом Республики Казахстан, регулирующим обязательный вид страхования.
3. Порядок и сроки осуществления страховых выплат определяются договором.
По обязательному страхованию они могут быть определены законодательными актами Республики Казахстан.
4. Страховая выплата по страхованию имущества и гражданско-правовой ответственности не может превышать размера реального ущерба, понесенного страхователем (застрахованным) в результате наступления страхового случая.
5. Страховая выплата по личному страхованию осуществляется страхователю (застрахованному), независимо от причитающихся ему сумм по социальному обеспечению, по другим договорам страхования и в порядке возмещения вреда.
6. Условиями договора имущественного страхования может предусматриваться замена страховой выплаты компенсацией ущерба в натуральной форме в пределах суммы страховой выплаты.
7. При осуществлении страховой выплаты страховщик вправе произвести зачет причитающихся ему от страхователя страховых премий либо страховых взносов.
8. За несвоевременное осуществление страховой выплаты страховщик несет ответственность в соответствии со настоящего Кодекса, если болеестатьей 353 высокий размер ответственности не предусмотрен договором или законодательными актами Республики Казахстан.
Сноска. Статья 820 с изменениями, внесенными законами РК от 18.12.2000 № 128; от 20.02.2006 № 128 (порядок введения в действие см. ст.2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 821. Двойное страхование
1. Двойное (множественное) страхование - страхование одного и того же объекта у нескольких страховщиков по самостоятельным договорам с каждым.
2. При двойном страховании имущества каждый страховщик несет перед страхователем ответственность в пределах заключенного с ним договора, однако общая сумма страховых выплат, полученная страхователем от всех страховщиков, не может превышать реального ущерба.
При этом страхователь вправе получить страховую выплату с любого страховщика в объеме страховой суммы, предусмотренной заключенным с ним договором. В случае, если полученная страховая выплата не покрывает реального ущерба, страхователь вправе получить недостающую сумму с другого страховщика.
Страховщик, полностью или частично освобожденный от страховой выплаты в силу того, что причиненный ущерб возмещен другими страховщиками, обязан вернуть страхователю соответствующую часть страховых премий, за вычетом понесенных расходов.
3. При двойном (множественном) личном страховании каждый страховщик выполняет свои страховые обязательства перед страхователем самостоятельно, независимо от выполнения их другими страховщиками.
Сноска. В статью 821 внесены изменения - Законом РК от 18 декабря 2000 г. N 128.
Статья 822. Групповое страхование
1. При групповом страховании одним договором страхования охватывается несколько застрахованных, являющихся одновременно выгодоприобретателями.
2. Групповое страхование может быть как личным, так и имущественным, как персонифицированным, так и обезличенным, охватывающим определенную категорию лиц.
При обезличенном страховании круг застрахованных должен быть конкретизирован в договоре страхования в той мере, в которой это необходимо для индивидуализации страхового случая, его последствий в отношении каждого застрахованного и размера причитающейся ему страховой выплаты.
3. Коллективное страхование работодателем своих работников может быть только личным страхованием.
Сноска. В статью 822 внесены изменения - Законом РК от 18 декабря 2000 г. N 128.
Статья 823. Сострахование и совместное перестрахование
1. Объект страхования может быть застрахован по одному договору сострахования совместно несколькими страховщиками путем создания простого товарищества (страхового пула) на основе договора о совместной деятельности ( сострахование).
Объект перестрахования может быть застрахован по одному договору совместного перестрахования совместно несколькими перестраховщиками путем создания простого товарищества (перестраховочного пула) на основе договора о совместной деятельности (совместное перестрахование).
При этом в договоре сострахования (совместного перестрахования) должны содержаться условия, определяющие права и обязанности каждого страховщика ( перестраховщика) в согласованных долях.
Участники страхового (перестраховочного) пула солидарно отвечают перед страхователем (выгодоприобретателем) или перестрахователем по обязательствам страхового (перестраховочного) пула, в том числе за осуществление страховой выплаты, если иное не определено договором сострахования (совместного перестрахования).
2. При наличии соответствующего соглашения между страховщиками ( перестраховщиками) один из них может представлять всех страховщиков ( перестраховщиков) во взаимоотношениях со страхователем (перестрахователем).
3. Руководство и ведение общих дел участников страхового ( перестраховочного) пула могут осуществляться страховым брокером при наличии соответствующего соглашения с участниками страхового ( перестраховочного) пула.
Сноска. Статья 823 в редакции Закона РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 824. Перестрахование
1. Страховщик вправе путем перестрахования обеспечить покрытие риска исполнения всех или части своих обязательств перед страхователем у другого страховщика (перестраховщика).
Объектами перестрахования могут быть имущественные интересы перестрахователя, связанные с риском осуществления страховой выплаты по заключенному им в качестве страховщика (перестраховщика) договору страхования (перестрахования).
Не подлежат перестрахованию противоправные имущественные интересы перестрахователя.
Договоры перестрахования, объектом которых выступают противоправные имущественные интересы перестрахователя либо в которых отсутствует объект перестрахования, являются ничтожными.
2. Страховщик, заключивший с перестраховщиком договор перестрахования ( перестрахователь), остается ответственным перед страхователем в полном объеме в соответствии с заключенным с ним договором страхования.
3. Условия перестрахования определяются законодательными актами Республики Казахстан и договором перестрахования между перестрахователем и перестраховщиком.
Договор перестрахования должен отвечать требованиям, предъявляемым настоящим Кодексом к договору страхования. Договор исламского перестрахования должен отвечать требованиям, предъявляемым настоящим
Кодексом к договору исламского страхования. При этом страховщик по основному договору страхования (договору исламского страхования) в договоре перестрахования (договоре исламского перестрахования) считается страхователем.
4. Исключен Законом РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
5. Допускается последовательное заключение двух или нескольких договоров перестрахования.
Сноска. Статья 824 с изменениями, внесенными законами РК от 10.07.2003 N 483 (вводится в действие с 1 января 2004 года); от 20.02.2006 N 128 (порядок введения в действие см. ст. 2); от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 825. Форма договора страхования
1. Договор страхования заключается в письменной форме путем: 1) составления сторонами договора страхования;
2) присоединения страхователя к типовым условиям страхования, предусмотренным законодательными актами Республики Казахстан, либо правилам страхования, разработанным страховщиком в одностороннем порядке ( договор присоединения), и оформления страховщиком страхователю страхового полиса.
2. Форма договора по обязательному страхованию устанавливается отдельными законодательными актами Республики Казахстан, регулирующими обязательные виды страхования, по вмененному страхованию – соглашением сторон с соблюдением минимальных условий, предусмотренных законодательными актами Республики Казахстан, а по добровольному страхованию – страховщиком либо соглашением сторон.
При заключении договора страхования страховщик вправе применять договоры, разработанные по видам страхования в соответствии с типовыми условиями или правилами страхования.
3. Несоблюдение письменной формы договора страхования влечет его ничтожность.
Сноска. Статья 825 в редакции Закона РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 825-1. Правила страхования
1. Правила страхования разрабатываются страховщиком по каждому виду страхования и должны соответствовать требованиям настоящей статьи.
2. Правила страхования должны содержать: 1) перечень объектов страхования; 2) порядок определения страховых сумм; 3) перечень страховых случаев; 4) исключение из страховых случаев и ограничение страхования; 5) срок и место действия договора страхования; 6) порядок заключения договора страхования; 7) права и обязанности сторон; 8) действия страхователя при наступлении страхового случая; 9) перечень документов, подтверждающих наступление страхового случая и
размер убытков; 10) порядок и условия осуществления страховых выплат; 10-1) срок уведомления страхователя или застрахованного о недостающих
документах, необходимых для осуществления страховой выплаты; 11) срок принятия решения о страховой выплате или отказе в страховой
выплате; 12) условия прекращения договора страхования;
13) порядок разрешения споров, в том числе особенности урегулирования споров по обязательному страхованию;
14) исключен Законом РК от 20.02.2006 N 128 (порядок введения в действие см. ст. 2);
15) дополнительные условия. 3. Исключен Законом РК от 10.07.2003 N 483 (вводится в действие с
01.01.2004). 4. По соглашению между страхователем и страховщиком на основании
правил страхования могут быть заключены договоры страхования, предусматривающие изменение, исключение отдельных положений правил страхования, а также дополнительные условия, определяемые при заключении договора страхования.
4-1. Условия, содержащиеся в правилах страхования и не включенные в текст договора страхования, обязательны для сторон, если в договоре прямо указывается на применение таких правил и сами правила изложены в договоре либо приложены к нему. В последнем случае предоставление страхователю правил страхования при заключении договора должно быть удостоверено сторонами в договоре.
5. Исключен Законом РК от 30.12.2009 № 234-IV. Сноска. Кодекс дополнен статьей 825-1 в соответствии с Законом РК от
18.12.2000 N 128; с изменениями, внесенными законами РК от 10.07.2003 N 483 ( вводится в действие с 01.01.2004); от 20.02.2006 N 128 (порядок введения в действие см. ст. 2); от 30.12.2009 № 234-IV; от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 826. Содержание договора страхования
1. Договор страхования должен содержать: 1) наименование, место нахождения и банковские реквизиты страховщика; 2) фамилию, имя, отчество (если оно указано в документе, удостоверяющем
личность) и местожительства страхователя (если им является физическое лицо) или его
наименование, место нахождения и банковские реквизиты (если им является юридическое лицо);
2-1) фамилию, имя, отчество (если оно указано в документе, удостоверяющем личность), контактный номер телефона и индивидуальный идентификационный номер страхового агента (если им является физическое лицо-резидент Республики Казахстан) или наименование, место нахождения, контактный номер телефона и бизнес-идентификационный номер страхового агента (если им является юридическое лицо-резидент Республики Казахстан);
3) указание объекта страхования; 4) указание страхового случая;
5) размеры страховой суммы (за исключением договоров аннуитетного страхования и договоров страхования, предусматривающих условие участия страхователя в инвестициях), порядок и сроки осуществления страховой выплаты;
6) размер страховой премии, порядок и сроки их уплаты; 6-1) размер вознаграждения страховщика за управление исламским
страховым фондом, условия и порядок его уплаты (при заключении договора исламского страхования);
6-2) указание о наличии или отсутствии комиссионного вознаграждения, причитающегося страховому агенту;
7) дату заключения и срок действия договора; 8) указания о застрахованном и выгодоприобретателе, если они являются
участниками страхового отношения;
9) номер, серию договора (страхового полиса); 10) случаи и порядок внесения изменений в условия договора;
10-1) обязанность страхователя незамедлительно сообщать страховщику о ставших ему известными значительных изменениях в обстоятельствах, сообщенных страховщику при заключении договора, если эти изменения могут существенно повлиять на увеличение страхового риска в период действия договора имущественного страхования (пункт 1 настоящего Кодекса);статьи 834
11) условия выплаты и размер выкупной суммы (для накопительного страхования, за исключением договоров страхования, предусматривающих условие участия страхователя в инвестициях);
11-1) сроки уведомления страхователя или застрахованного о недостающих документах, необходимых для осуществления страховой выплаты;
12) утратил силу Законом РК от 12.01.2012 № 538-IV (вводится в действие с 01.01.2013);
13) утратил силу Законом РК от 12.01.2012 № 538-IV (вводится в действие с 01.01.2013);
14) вид валюты страховой суммы, страховой выплаты и страховой премии; 15) указание идентификационного номера, признака резидентства и сектора
экономики страхователя; 16) указание идентификационного номера, признака резидентства и сектора
экономики застрахованного (выгодоприобретателя), если он не является страхователем по договору страхования, в случае указания застрахованного ( выгодоприобретателя) в договоре страхования.
2. По соглашению сторон в договор могут быть включены иные условия. 2-1. Франшиза - предусмотренное условиями страхования освобождение
страховщика от возмещения ущерба, не превышающего определенного размера. Франшиза бывает условная (невычитаемая) и безусловная (вычитаемая). При условной франшизе страховщик освобождается от возмещения ущерба,
не превышающего установленного размера франшизы, но должен возместить ущерб полностью, если его размер больше этой суммы.
При безусловной франшизе ущерб во всех случаях возмещается за вычетом установленной суммы.
Франшиза устанавливается либо в процентах к страховой сумме, либо в абсолютном размере.
3. Если договор страхования содержит условия, ухудшающие положение страхователя по сравнению с теми, которые предусмотрены законодательными актами, действуют правила, установленные этими законодательными актами.
4. Период ответственности перестраховщика по договору перестрахования должен соответствовать периоду ответственности страховщика по договору
страхования, обязательства по которому переданы в перестрахование, если договором перестрахования не предусмотрено иное.
5. Ответственность за неполноту условий, подлежащих указанию в договоре страхования, несет страховщик.
Сноска. Статья 826 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 20.02.2006 N 128 (порядок введения в действие см. ст. 2); от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 30.12.2009 № 234-IV; от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2); от 12.01.2012 № 538-IV (порядок введения в действие см. ст. 2); от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 826-1. Отсрочка уплаты страховой премии по договору накопительного страхования
1. Страховщик, не получивший страховой взнос (за исключением первого) в установленный договором накопительного страхования срок, обязан уведомить страхователя о необходимости уплаты страхового взноса.
2. Уведомление должно содержать: 1) период, в течение которого необходимо уплатить страховой взнос (период
отсрочки страховой премии); 2) размер пени за просрочку уплаты страхового взноса;
3) право страховщика в одностороннем порядке прекратить действие договора в случае неуплаты страхового взноса в течение периода отсрочки страховой премии.
3. Период отсрочки страховой премии не может быть менее 30 календарных дней.
4. При наступлении страхового случая в период отсрочки страховой премии по договору накопительного страхования страховщик обязан осуществить страховую выплату, удержав при этом сумму задолженности.
5. Уведомление о необходимости уплаты страхового взноса направляется страхователю способом, позволяющим подтвердить отправку уведомления.
Сноска. Кодекс дополнен статьей 826-1 в соответствии с Законом РК от 18.12.2000 N 128; с изменениями, внесенными законами РК от 20.02.2006 N 128 ( порядок введения в действие см. ст. 2); от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2).
Статья 826-2. Восстановление действия договора накопительного страхования
1. Если действие договора накопительного страхования было приостановлено или прекращено на основании неуплаты страхователем страхового взноса, страховщик обязан восстановить действие договора при уплате страхователем:
1) (исключен - от 20 февраля 2006 года N 128 (порядок введения в действие см. ст.2);
2) просроченных страховых взносов; 3) пени за просрочку уплаты страховых взносов в размере, предусмотренном
настоящего Кодекса.статьей 353 2. Страхователь вправе восстановить действие договора накопительного
страхования в течение одного года с даты прекращения действия договора или приостановления исполнения сторонами договора своих обязательств.
3. Страховщик вправе при восстановлении действия договора накопительного страхования провести медицинскую экспертизу состояния здоровья застрахованного лица.
В случае ухудшения состояния здоровья застрахованного лица страховщик вправе произвести перерасчет размеров страховой выплаты и (или) страховой премии. При отказе страхователя восстановить действие договора на новых условиях договор восстановлению не подлежит.
4. Страховщик вправе отказаться от восстановления действия договора накопительного страхования, если действие такого договора было досрочно прекращено и страховщиком была выплачена выкупная сумма.
Сноска. Дополнен статьей 826-2 - Законом РК от 18 декабря 2000 г. N 128; внесены изменения - от 20 февраля 2006 года N 128 (порядок введения в действие см. ст.2).
Статья 826-3. Страхование по договору путем оформления генерального полиса
1. По соглашению страхователя со страховщиком систематическое страхование разных партий однородного имущества (товаров, грузов и другого) на сходных условиях в течение определенного срока может осуществляться на основании одного договора страхования путем оформления страхователю генерального полиса.
2. Страхователь обязан в отношении каждой партии имущества, подпадающего под действие договора, указанного в пункте 1 настоящей статьи, сообщать страховщику обусловленные таким договором сведения в
предусмотренный им срок, а если он не предусмотрен, немедленно по их получении. Страхователь не освобождается от этой обязанности, даже если к моменту получения таких сведений возможность убытков, подлежащих возмещению страховщиком, уже миновала.
3. По требованию страхователя страховщик обязан выдавать страховые полисы по отдельным партиям имущества, подпадающим под действие договора, указанного в пункте 1 настоящей статьи.
В случае несоответствия содержания страхового полиса генеральному полису предпочтение отдается страховому полису.
Сноска. Кодекс дополнен статьей 826-3 в соответствии с Законом РК от 18.12.2000 № 128; с изменением, внесенным Законом РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 827. Действие договора страхования
1. Договор страхования вступает в силу и становится обязательным для сторон с момента уплаты страхователем страховой премии, а при уплате ее в рассрочку - первого страхового взноса, если договором или законодательными актами Республики Казахстан не предусмотрено иное.
2. Договор страхования прекращает свое действие с момента осуществления страховой выплаты по первому наступившему страховому случаю, если договором или законодательными актами Республики Казахстан не предусмотрено иное.
3. Период действия страховой защиты совпадает со сроком действия договора , если договором или законодательными актами Республики Казахстан не предусмотрено иное.
Сноска. Статья 827 с изменениями, внесенными законами РК от 18.12.2000 № 128; от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 828. Обязанности страховщика
1. Страховщик обязан: 1) при наступлении страхового случая произвести страховую выплату в
размере, порядке и сроки, установленные в договоре страхования или законодательных актах;
1-1) ознакомить страхователя с правилами страхования и по его требованию представить (направить) копию правил;
2) возместить страхователю (застрахованному) расходы, произведенные им для уменьшения убытков при страховом случае;
3) обеспечить тайну страхования; 4) в случаях непредставления страхователем (застрахованным) или
потерпевшим (выгодоприобретателем) либо их представителем всех документов, необходимых для осуществления страховой выплаты, уведомить их о недостающих документах в срок, установленный договором страхования.
2. Законодательными актами о страховании и страховой деятельности, а также договором страхования могут быть предусмотрены другие обязанности страховщика.
Сноска. Статья 828 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 30.12.2009 № 234-IV; от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 829. Возмещение расходов, направленных на уменьшение убытков от страхового случая
1. При наступлении страхового случая, предусмотренного договором имущественного страхования, страхователь (застрахованный) обязан принять разумные и доступные в сложившихся обстоятельствах меры, чтобы предотвратить или уменьшить возможные убытки, в том числе меры к спасению и сохранению застрахованного имущества.
Принимая такие меры, страхователь (застрахованный) должен следовать указаниям страховщика, если они сообщены страхователю (застрахованному).
2. Расходы, понесенные страхователем (застрахованным) в целях предотвращения или уменьшения убытков, подлежат возмещению страховщиком , если такие расходы были необходимы или были произведены для выполнения указаний страховщика, даже если соответствующие меры оказались безуспешными.
Такие расходы возмещаются в фактических размерах, однако с тем, чтобы общая сумма страховой выплаты и компенсации расходов не превысила страховой суммы, предусмотренной договором страхования, если расходы возникли в результате исполнения страхователем (застрахованным) указаний страховщика, они возмещаются в полном размере, безотносительно к страховой сумме.
3. Страховщик освобождается от осуществления страховой выплаты в части тех убытков, которые возникли вследствие того, что страхователь (
застрахованный) умышленно не принял разумных и доступных ему мер, чтобы уменьшить возможные убытки.
Сноска. В статью 829 внесены изменения - Законами РК от 18 декабря 2000 г. N 128; от 1 июля 2003 года N 445.
Статья 830. Тайна страхования
1. Тайна страхования включает в себя сведения о размерах страховой суммы, выкупной суммы и оплаченных страховых премий, иных условиях договора страхования (перестрахования), относящихся к личности страхователя, застрахованного или выгодоприобретателя. Не относятся к тайне страхования сведения о заключенных договорах страхования (перестрахования) страховой ( перестраховочной) организацией, находящейся в процессе ликвидации.
1-1. Законодательными актами о страховании и страховой деятельности могут быть предусмотрены иные условия и порядок разглашения сведений, составляющих тайну страхования.
2. Профессиональные участники страхового рынка, страховой агент не вправе разглашать полученные ими в результате своей профессиональной деятельности сведения, составляющие тайну страхования, за исключением случаев предоставления информации другому профессиональному участнику страхового рынка либо страховому агенту, связанных с заключением договоров перестрахования или отношениями по сострахованию, а также предусмотренных пунктами , 4-1, и настоящей статьи.4 5 6
3. Должностные лица, работники страховой (перестраховочной) организации, страховых холдингов-резидентов Республики Казахстан, страховых брокеров, страховых агентов, страховые агенты и иные лица, которые в силу осуществления своих служебных обязанностей получили доступ к сведениям, составляющим тайну страхования, за их разглашение несут ответственность, предусмотренную законами Республики Казахстан.
4. Тайна страхования может быть раскрыта третьему лицу на основании письменного согласия страхователя (застрахованного, выгодоприобретателя).
4-1. Тайна страхования может быть раскрыта страховому омбудсману по находящимся у него на рассмотрении обращениям физических и юридических лиц по урегулированию разногласий, возникающих из договоров страхования.
5. Сведения, содержащие тайну страхования, предоставляются: 1) представителю страхователя (выгодоприобретателя) - на основании
нотариально удостоверенной доверенности; 2) органу дознания и предварительного следствия - по находящимся в его
производстве уголовным делам;
3) суду - по находящимся в его производстве делам на основании определения или постановления суда;
4) прокурору - на основании постановления о производстве проверки в пределах его компетенции по находящимся у него на рассмотрении материалам;
4-1) уполномоченному органу по финансовому мониторингу - в целях и порядке, предусмотренных Республики Казахстан "О противодействииЗаконом легализации (отмыванию) доходов, полученных преступным путем, и финансированию терроризма";
4-2) Государственной корпорации "Правительство для граждан" в целях, предусмотренных статьи 59 Закона Республики Казахстан "Опунктом 4 пенсионном обеспечении в Республике Казахстан";
4-3) уполномоченному государственному органу, осуществляющему руководство в сфере обеспечения поступлений налогов и других обязательных платежей в бюджет в соответствии с налоговым законодательством Республики Казахстан в отношении:
договоров страхования, заключенных проверяемыми физическими лицами; договоров накопительного страхования, выгодоприобретателями по которым
являются физические лица-нерезиденты; договоров накопительного страхования, выгодоприобретателями по которым
являются физические лица, указанные в запросе уполномоченного органа иностранного государства, направленном в соответствии с международным договором Республики Казахстан;
4-4) органам национальной безопасности Республики Казахстан в отношении договоров обязательного страхования гражданско-правовой ответственности владельцев транспортных средств – в целях и порядке, предусмотренных Законом Республики Казахстан "Об органах национальной безопасности Республики Казахстан", а в отношении иных договоров страхования – с санкции прокурора;
4-5) Службе государственной охраны Республики Казахстан с санкции прокурора в целях предупреждения, вскрытия и пресечения разведывательных и (или) подрывных акций;
5) уполномоченному государственному органу - по вопросам, связанным с осуществлением надзора за страховой деятельностью;
5-1) страховому холдингу-резиденту Республики Казахстан – для целей расчета пруденциальных нормативов страховой группы, а также формирования системы управления рисками и внутреннего контроля страховой группы;
6) иным лицам в соответствии с законодательными актами Республики Казахстан о страховании и страховой деятельности.
Сведения, составляющие тайну страхования, могут быть предоставлены Национальным Банком Республики Казахстан аудиторской организации в соответствии с частью пятой пункта 13 Закона Республики Казахстан "статьи 20 О страховой деятельности".
6. Сведения, содержащие тайну страхования, в случае смерти страхователя, застрахованного, выгодоприобретателя выдаются:
1) наследникам; 2) судам и нотариусам по находящимся в их производстве наследственным
делам на основании определения, постановления суда или письменного запроса нотариуса, заверенного его печатью. К письменному запросу нотариуса должна быть приложена копия свидетельства о смерти страхователя;
3) иностранным консульским учреждениям - по находящимся в их производстве делам о наследовании.
7. Общие условия осуществления страховой деятельности, перечень предлагаемых страховых услуг, страховые тарифы, сроки страхования, а также иные основные условия договора страхования (перестрахования) являются открытой информацией и не могут быть предметом тайны страхования и коммерческой тайны.
8. В случае разглашения страховщиком сведений, составляющих тайну страхования, страхователь (застрахованный, выгодоприобретатель) вправе потребовать возмещения причиненных убытков, а в надлежащих случаях - компенсации морального вреда.
Сноска. Статья 830 в редакции Закона РК от 18.12.2000 № 128; с изменениями, внесенными законами РК от 10.07.2003 N 483 (вводится в действие с 01.01.2004); от 27.02.2004 N 527 (вводится в действие с 01.04.2004); от 20.02.2006 N 128 (порядок введения в действие см. ст. 2); от 28.08.2009 N 192-IV (вводится в действие с 08.03.2010); от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2); от 21.06.2012 № 19-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 10.06.2014 № 206-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 17.11.2015 № 408-V ( вводится в действие с 01.03.2016); от 18.11.2015 № 412-V (вводится в действие с 01.01.2017); от 24.11.2015 № 422-V (вводится в действие с 01.01.2016); от 06.04.2016 № 483-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 28.12.2016 № 36-VІ ( вводится в действие по истечении двух месяцев после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 168-VІ (вводится в действие с 01.01.2019).
Статья 831. Обязанности страхователя
1. Страхователь обязан: 1) уплачивать страховые премии в размере, порядке и сроки, установленные договором страхования; 2) информировать страховщика о состоянии страхового риска; 3) уведомить страховщика о наступлении страхового случая; 4) принять меры к уменьшению убытков от страхового случая (пункт 1 статьи настоящего Кодекса);829
5) обеспечить переход к страховщику права требования к лицу, ответственному за наступление страхового случая ( настоящегостатья 840 Кодекса).
2. Договором страхования могут быть предусмотрены и другие обязанности страхователя.
Сноска. Статья 831 с изменениями, внесенными Законом РК от 18.12.2000 № 128.
Статья 832. Сведения, представляемые страхователем при заключении договора
1. При заключении договора страхователь обязан сообщить страховщику известные страхователю обстоятельства, имеющие существенное значение для определения вероятности наступления страхового случая и размера возможных убытков от его наступления (страхового риска), если эти обстоятельства не известны и не должны быть известны страховщику.
Существенными признаются обстоятельства, определенно оговоренные в правилах страхования, разработанных страховщиком, или в письменном запросе страховщика, направленном страхователю в период заключения договора.
При заключении договора обязательного страхования существенными признаются обстоятельства, установленные отдельными законодательными актами Республики Казахстан, регулирующими обязательные виды страхования.
2. Договор страхования не может быть заключен при отсутствии ответов страхователя на вопросы, указанные в письменном запросе страховщика, в отношении существенных обстоятельств.
Если договор страхования заключен при отсутствии ответов страхователя на какие-либо вопросы страховщика, последний не может впоследствии требовать расторжения договора либо признания его недействительным на том основании, что соответствующие обстоятельства не были сообщены страхователем.
3. Если после заключения договора будет установлено, что страхователь сообщил страховщику заведомо ложные сведения об обстоятельствах, указанных в пункте 1 настоящей статьи, страховщик вправе потребовать признания договора недействительным и применения последствий, предусмотренных частями второй и третьей пункта 1 настоящего Кодекса.статьи 844
Страховщик не может требовать признания договора недействительным, если обстоятельства, о которых умолчал страхователь, уже отпали.
Сноска. Статья 832 в редакции Закона РК от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 833. Оценка страхового риска и причиненного вреда
1. При заключении договора страхования имущества страховщик вправе произвести осмотр и оценку страхуемого имущества, а при необходимости назначить экспертизу в целях установления его действительной стоимости.
Оценка страхуемого имущества и причиненного вреда, осуществляемая страховщиком, является составной частью страхования и не требует дополнительного лицензирования.
2. При заключении договора личного страхования страховщик вправе произвести обследование страхуемого лица для оценки фактического состояния его здоровья.
3. Оценка страхового риска страховщиком на основании настоящей статьи необязательна для страхователя, который вправе доказывать иное.
4. Размер причиненного вреда в результате наступления страхового случая по заявлению страхователя или его представителя определяет страховщик. При необходимости оценка размера причиненного вреда проводится оценщиком ( независимым экспертом). При несогласии с результатами оценки причиненного вреда стороны вправе доказывать иное.
5. При обязательном страховании порядок и условия проведения оценки размера причиненного вреда в результате наступления страхового случая могут устанавливаться законодательными актами Республики Казахстан.
Сноска. Статья 833 с изменениями, внесенными законами РК от 01.07.2003 № 445; от 07.05.2007 № 244; от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 834. Последствия увеличения страхового риска в период действия договора
1. В период действия договора имущественного страхования страхователь ( застрахованный) обязан незамедлительно сообщать страховщику о ставших ему известными значительных изменениях в обстоятельствах, сообщенных страховщику при заключении договора, если эти изменения могут существенно повлиять на увеличение страхового риска.
Значительными во всяком случае признаются изменения, оговоренные в договоре страхования.
2. Страховщик, уведомленный об обстоятельствах, влекущих увеличение страхового риска, вправе потребовать изменения условий договора или уплаты дополнительной страховой премии соразмерно увеличению риска.
Если страхователь или застрахованный возражает против изменения условий договора страхования или доплаты страховой премии, страховщик вправе потребовать расторжения договора в соответствии с правилами, предусмотренными настоящего Кодекса.главой 24
3. При невыполнении страхователем или застрахованным предусмотренной в пункте 1 настоящей статьи обязанности страховщик вправе потребовать расторжения договора и возмещения убытков, причиненных расторжением договора.
4. Страховщик не вправе требовать расторжения договора, если обстоятельства, влекущие увеличение страхового риска, уже отпали.
5. При личном страховании последствия изменения страхового риска в период действия договора, указанные в пунктах 2 и 3 настоящей статьи, могут наступить, если они прямо предусмотрены в договоре.
Сноска. В статью 834 внесены изменения - Законом РК от 18 декабря 2000 г. N 128.
Статья 835. Уведомление страховщика о наступлении страхового случая
1. Страхователь после того, как ему стало известно о наступлении страхового случая, обязан незамедлительно уведомить о его наступлении страховщика или его представителя. Если договором или законодательным актом Республики Казахстан предусмотрен срок и (или) способ уведомления, оно должно быть сделано в обусловленный срок и указанным в договоре или законодательном акте Республики Казахстан способом.
В случае, если страхователь не является застрахованным, такая обязанность лежит на застрахованном.
В случае, если при личном страховании страховым случаем является смерть застрахованного, то обязанность уведомления страховщика о страховом случае лежит на страхователе, а если он одновременно являлся застрахованным - то на
выгодоприобретателе. При этом устанавливаемый договором срок уведомления страховщика не может быть менее тридцати дней.
2. Выгодоприобретатель имеет право уведомить страховщика о наступлении страхового случая при всех обстоятельствах, независимо от того, сделали это или нет страхователь или застрахованный.
3. Неуведомление страховщика о наступлении страхового случая дает ему право отказать в страховой выплате, если не будет доказано, что страховщик своевременно узнал о наступлении страхового случая либо отсутствие у страховщика сведений об этом не могло сказаться на его обязанности осуществить страховую выплату.
4. Неуведомление или несвоевременное уведомление страховщика о наступлении страхового случая не является основанием для отказа в осуществлении страховой выплаты, если оно обусловлено причинами, не зависящими от воли страхователя или отнесенными договором страхования к уважительным, и представлены соответствующие документы, подтверждающие данный факт.
Сноска. Статья 835 с изменениями, внесенными законами РК от 18.12.2000 № 128; от 01.07.2003 № 445; от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 836. Замена страхователя
1. В случае смерти страхователя, заключившего договор страхования имущества, права и обязанности страхователя переходят к лицу, принявшему это имущество в порядке наследования. В других случаях перехода права собственности (или иных вещных прав), права и обязанности страхователя переходят к новому собственнику (или обладателю иных вещных прав) с согласия страховщика, если договором или законодательными актами не установлено иное.
2. В случае смерти страхователя, заключившего договор личного страхования в пользу застрахованного, права и обязанности, определяемые этим договором, переходят к застрахованному с его согласия. При невозможности выполнения застрахованным обязанностей по договору страхования его права и обязанности могут перейти к лицам, осуществляющим в соответствии с законодательными актами обязанности по охране его прав и законных интересов.
3. При реорганизации страхователя, являющегося юридическим лицом, в период действия договора страхования его права и обязанности по этому
договору переходят с согласия страховщика к соответствующему правопреемнику в порядке, определенном настоящим Кодексом.
Статья 837. Замена застрахованного
1. В случае, когда по договору ответственности за причинение вреда застрахована ответственность лица иного, чем страхователь, последний вправе, если иное не предусмотрено договором страхования, в любое время до наступления страхового случая заменить это лицо другим, письменно уведомив об этом страховщика.
2. Не являющийся страхователем застрахованный, названный в договоре личного страхования, а также имущественного страхования, может быть заменен другим лишь с согласия самого застрахованного (за исключением группового личного страхования) и страховщика.
3. Если страхование третьего лица вытекает из требований законодательных актов Республики Казахстан, замена застрахованного осуществляется в порядке, установленном указанными законодательными актами Республики Казахстан и основанном на них договоре.
Сноска. Статья 837 с изменениями, внесенными законами РК от 18.12.2000 № 128; от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 838. Замена выгодоприобретателя
1. Страхователь вправе до наступления страхового случая заменить не являющегося застрахованным выгодоприобретателя, названного в договоре страхования, другим лицом, письменно уведомив об этом страховщика.
2. Выгодоприобретатель не может быть заменен другим лицом после того, как он выполнил определенные обязанности по договору страхования, вытекающие из его соглашения со страхователем, или предъявил страховщику требование по осуществлению страховой выплаты.
3. Замена выгодоприобретателя, являющегося застрахованным, производится в порядке, предусмотренном настоящего Кодекса.статьей 837
Сноска. В статью 838 внесены изменения - Законом РК от 18 декабря 2000 г. N 128.
Статья 839. Основания освобождения страховщика от осуществления страховой выплаты
1. Страховщик вправе полностью или частично отказать страхователю в страховой выплате, если страховой случай произошел вследствие:
1) умышленных действий страхователя, застрахованного и (или) выгодоприобретателя, направленных на возникновение страхового случая либо способствующих его наступлению, за исключением действий, совершенных в состоянии необходимой обороны и крайней необходимости;
2) действий страхователя, застрахованного и (или) выгодоприобретателя, признанных в установленном законодательными актами Республики Казахстан порядке умышленными уголовными или административными правонарушениями, находящимися в причинной связи со страховым случаем.
Страховщик не освобождается от осуществления страховой выплаты по договорам страхования гражданско-правовой ответственности, если страховой случай произошел по вине лица, чья ответственность является объектом страхования.
Страховщик не освобождается от осуществления страховой выплаты, которая по договору личного страхования подлежит выплате в случае смерти застрахованного, если смерть наступила вследствие самоубийства и к этому времени договор страхования действовал уже не менее двух лет.
2. Поскольку договором добровольного страхования и законодательными актами Республики Казахстан не предусмотрено иное, страховщик освобождается от осуществления страховой выплаты, если страховой случай наступил вследствие:
1) воздействия ядерного взрыва, радиации или радиоактивного заражения; 2) военных действий;
3) гражданской войны, народных волнений всякого рода, массовых беспорядков или забастовок.
3. Поскольку договором имущественного страхования не предусмотрено иное , страховщик освобождается от осуществления страховой выплаты за убытки, возникшие вследствие изъятия, конфискации, реквизиции, ареста или уничтожения застрахованного имущества по распоряжению государственных органов.
4. Основанием для отказа страховщика в осуществлении страховой выплаты может быть также следующее:
1) сообщение страхователем страховщику заведомо ложных сведений об объекте страхования, страховом риске, страховом случае и его последствиях;
2) умышленное непринятие страхователем мер по уменьшению убытков от страхового случая ( настоящего Кодекса);статья 829
3) получение страхователем соответствующего возмещения убытка по имущественному страхованию от лица, виновного в причинении убытка;
4) воспрепятствование страхователем страховщику в расследовании обстоятельств наступления страхового случая и в установлении размера причиненного им убытка;
5) неуведомление страховщика о наступлении страхового случая (статья 835 настоящего Кодекса);
6) отказ страхователя от своего права требования к лицу, ответственному за наступление страхового случая, а также отказ передать страховщику документы, необходимые для перехода к страховщику права требования (статья 840 настоящего Кодекса). Если страховое возмещение уже было выплачено, страховщик вправе требовать его возврата полностью или частично;
7) другие случаи, предусмотренные законодательными актами. 5. Освобождение страховщика от страховой ответственности перед
страхователем по мотивам его неправомерных действий, предусмотренных настоящей статьей, одновременно освобождает страховщика от осуществления страховой выплаты застрахованному или выгодоприобретателю.
6. Условиями договора страхования могут быть предусмотрены другие основания для отказа в страховой выплате, если это не противоречит законодательным актам.
7. Решение об отказе в страховой выплате принимается страховщиком и сообщается страхователю в письменной форме с мотивированным обоснованием причин отказа.
8. Отказ страховщика произвести страховую выплату может быть обжалован страхователем в суд.
Сноска. Статья 839 с изменениями, внесенными законами РК от 18.12.2000 № 128; от 20.02.2006 № 128 (порядок введения в действие см. ст. 2); от 03.07.2014 № 227-V (вводится в действие с 01.01.2015); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 840. Переход к страховщику прав страхователя на возмещение убытков (суброгация)
1. Если договором имущественного страхования не предусмотрено иное, к страховщику, осуществившему страховую выплату, переходит в пределах уплаченной суммы право требования, которое страхователь (застрахованный) имеет к лицу, ответственному за убытки, возмещенные в результате страхования. Однако условие договора, исключающее переход к страховщику права требования к лицу, умышленно причинившему убытки, ничтожно.
2. Перешедшее к страховщику право требования осуществляется им с соблюдением правил, регулирующих отношения между страхователем ( застрахованным) и лицом, ответственным за убытки.
3. Страхователь (застрахованный) обязан при получении страховой выплаты передать страховщику все документы и доказательства и сообщить ему все сведения, необходимые для осуществления страховщиком перешедшего к нему права требования.
4. Если страхователь (застрахованный) отказался от своего права требования к лицу, ответственному за убытки, возмещенные страховщиком, или осуществление этого права стало невозможным по вине страхователя ( застрахованного), страховщик освобождается от осуществления страховой выплаты полностью или в соответствующей части и вправе потребовать возврата излишне выплаченной суммы.
Сноска. Статья 840 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 841. Досрочное прекращение договора страхования
1. Помимо общих оснований прекращения обязательств, предусмотренных настоящим Кодексом, договор страхования прекращается досрочно в случаях:
1) когда перестал существовать объект страхования; 2) смерти застрахованного, не являющегося страхователем, когда не
произошла его замена ( статьи 815 настоящего Кодекса);пункт 8 3) отчуждения страхователем объекта имущественного страхования, если
страховщик возражает против замены страхователя, а договором или законодательными актами Республики Казахстан не установлено иное (пункт 1
настоящего Кодекса);статьи 836 4) прекращения в установленном порядке предпринимательской
деятельности страхователем, застраховавшим свой предпринимательский риск или гражданско-правовую ответственность, связанную с этой деятельностью;
5) когда возможность наступления страхового случая отпала и существование страхового риска прекратилось по обстоятельствам иным, чем страховой случай;
6) вступления в законную силу решения суда о принудительной ликвидации страховщика, за исключением случаев, предусмотренных РеспубликиЗаконом Казахстан "О страховой деятельности";
7) исключен Законом РК от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2);
8) изменения условий и сведений, включенных в страховой полис, оформленный страховщиком в порядке, предусмотренном законодательными актами Республики Казахстан;
9) в случаях, предусмотренных Законом Республики Казахстан "О страховой деятельности".
В указанных случаях договор считается прекращенным с момента возникновения обстоятельства, предусмотренного в качестве основания для прекращения договора, о чем заинтересованная сторона должна незамедлительно уведомить другую.
1-1. Если страхователь по договору накопительного страхования расторгает его в одностороннем порядке в период с четырнадцатого по тридцатый день с даты заключения договора, то страховщик обязан возвратить страхователю полученную сумму страховых премий за вычетом расходов, не превышающих двадцати процентов от полученной суммы страховых премий, понесенных страховщиком при заключении договора накопительного страхования.
2. Страхователь вправе отказаться от договора страхования в любое время. Сноска. Статья 841 с изменениями, внесенными законами РК от 10.07.2003 N
483 (вводится в действие с 01.01.2004); от 20.02.2006 N 128 (порядок введения в действие см. ст. 2); от 30.12.2009 № 234-IV; от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 842. Последствия досрочного прекращения договора страхования
1. При досрочном прекращении договора ненакопительного страхования по обстоятельствам, предусмотренным в пункте 1 настоящего Кодекса,статьи 841 страховщик имеет право на часть страховой премии пропорционально времени, в течение которого действовало страхование. Возврат страховых премий (взносов) при ликвидации страховщика осуществляется в соответствии с очередностью удовлетворения требований кредиторов, установленной законодательством Республики Казахстан о страховании и страховой деятельности.
При досрочном прекращении договора накопительного страхования в случаях, предусмотренных подпунктом 6) пункта 1 статьи 841 настоящего Кодекса и пунктом 3 настоящей статьи, возврату подлежит только выкупная сумма в размере, установленном договором, и в соответствии с очередностью удовлетворения требований кредиторов, установленной законодательством Республики Казахстан о страховании и страховой деятельности.
2. При отказе страхователя от договора ( статьи 841 настоящегопункт 2 Кодекса), если это не связано с обстоятельствами, указанными в ипунктах 1 1-1 статьи 841 настоящего Кодекса, уплаченные страховщику страховая премия либо страховые взносы не подлежат возврату, если договором не предусмотрено иное.
3. В случаях, когда досрочное прекращение договора страхования вызвано невыполнением его условий по вине страховщика, последний обязан возвратить страхователю уплаченную им страховую премию либо страховые взносы полностью.
Сноска. Статья 842 в редакции Закона РК от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2).
Статья 843. Недействительность договора страхования
1. Помимо общих оснований недействительности сделок, предусмотренных настоящим Кодексом, договор страхования признается недействительным в случаях, если:
1) объектом страхования является имущество, подлежащее конфискации на основании вступившего в законную силу соответствующего решения суда, либо имущество, добытое преступным путем или являющееся предметом уголовного правонарушения;
2) в качестве страхового случая предусмотрено событие, лишенное признаков , предусмотренных пунктом 3 статьи 817 настоящего Кодекса;
3) условия договора исключают возможность осуществления страховой выплаты при наступлении страхового случая;
4) страхователь при заключении договора заведомо преследовал цель извлечения неправомерной выгоды, в том числе посредством заключения договора после наступления страхового случая;
5) у страхователя (застрахованного, выгодоприобретателя) отсутствует страховой интерес;
6) отсутствует соглашение между сторонами о существенных условиях договора, предусмотренных пунктом 1 статьи 826 настоящего Кодекса.
2. Договор страхования ничтожен в случаях: 1) если объектом страхования (перестрахования) выступают противоправные
имущественные интересы (пункт 2 , часть третья пункта 1статьи 807 статьи 824 настоящего Кодекса);
2) отсутствия согласия застрахованного в тех случаях, когда получение его согласия является обязательным;
3) несоблюдения письменной формы договора (пункт 3 статьи 825 настоящего Кодекса);
4) отсутствует объект страхования (перестрахования). 3. Законодательными актами Республики Казахстан могут быть
предусмотрены применительно к отдельным видам страхования иные основания признания договора недействительным.
Сноска. Статья 843 с изменениями, внесенными законами РК от 20.02.2006 № 128 (порядок введения в действие см. ст. 2); от 03.07.2014 № 227-V (вводится в действие с 01.01.2015); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.07.2018 № 166-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 844. Последствия признания договора страхования недействительным
1. При признании договора страхования недействительным страховщик обязан вернуть страхователю полученные от него страховую премию либо страховые взносы, а страхователь (выгодоприобретатель) - вернуть страховщику полученную от него страховую выплату.
Если договор признан недействительным по основаниям, возникшим вследствие неправомерных действий страхователя, о чем страховщик в момент заключения договора, а также в процессе его исполнения, не знал и не должен был знать, страховщик возвращает страхователю страховую премию либо страховые взносы за неистекший срок договора, за вычетом понесенных расходов, а в случае, если была произведена страховая выплата - имеет право требовать возврата выплаченной суммы.
Такие же последствия наступают в случае признания договора страхования недействительным по причинам, дающим основание страховщику отказать в страховой выплате ( настоящего Кодекса).статья 839
2. Если договор страхования направлен на достижение преступной цели, противоправность которой установлена приговором (постановлением) суда, то наступают последствия, предусмотренные пунктами 5 – 7 статьи 157-1 настоящего Кодекса.
Сноска. Статья 844 с изменениями, внесенными законами РК от 18.12.2000 N 128; от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 845. Взаимное страхование
1. Граждане и юридические лица могут страховать свои имущественные интересы, указанные в пункте 1 настоящего Кодекса, на взаимнойстатьи 807
основе путем объединения в обществах взаимного страхования необходимых для этого средств.
2. Общества взаимного страхования осуществляют страхование иных имущественных интересов своих членов и являются некоммерческими организациями.
Особенности осуществления взаимного страхования, правового положения обществ взаимного страхования и условия их деятельности определяются в соответствии с настоящим Кодексом и законодательными актами о взаимном страховании.
3. Страхование обществами взаимного страхования имущественных интересов своих членов осуществляется на основании членства и договоров страхования.
4. Осуществление обязательного страхования путем взаимного страхования допускается в случаях, предусмотренных законодательными актами о взаимном страховании.
5. (Исключен - от 20 февраля 2006 года N 128 (порядок введения в действие см. ст.2).
Сноска. В статью 845 внесены изменения - Законом РК от 20 февраля 2006 года N 128 (порядок введения в действие см. ст.2); от 5 июля 2006 года N 164 ( порядок введения в действие см. ст. 2).
Статья 845-1. Исламское страхование
1. Договором исламского страхования является договор страхования (статья настоящего Кодекса), заключенный с учетом особенностей, установленных803
законодательством Республики Казахстан о страховании и страховой деятельности.
2. Страховая премия, уплаченная страхователем по договору исламского страхования, а также доходы, полученные в результате инвестирования страховых премий, подлежат перечислению страховщиком в исламский страховой фонд, формируемый страховщиком для осуществления страховых выплат страхователям (выгодоприобретателям) по договорам исламского страхования.
3. Страховые премии, полученные страховщиком по договору исламского страхования, а также иное имущество, составляющее исламский страховой фонд, не принадлежат страховщику на праве собственности.
4. Страховщик по договору исламского страхования вправе получить вознаграждение за управление исламским страховым фондом за счет средств исламского страхового фонда в соответствии с требованиями, установленными
законодательством Республики Казахстан о страховании и страховой деятельности, и заключенным договором исламского страхования.
5. Особенности осуществления исламского страхования, формирования, учета, использования и распределения исламского страхового фонда, правового положения страховщиков, осуществляющих исламское страхование, и условия их деятельности определяются в соответствии с настоящим Кодексом и законодательными актами Республики Казахстан о страховании и страховой деятельности.
Сноска. Глава 40 дополнена статьей 845-1 в соответствии с Законом РК от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Глава 41. Поручение
Статья 846. Договор поручения
1. По договору поручения одна сторона (поверенный) обязуется совершить от имени и за счет другой стороны (доверителя) определенные юридические действия. По сделке, совершенной поверенным, права и обязанности возникают непосредственно у доверителя.
2. Договор поручения заключается в письменной форме.
Статья 847. Исполнение поручения в соответствии с указаниями доверителя
1. Поверенный обязан исполнять данное ему поручение в соответствии с указаниями доверителя. Указания доверителя должны быть конкретными, правомерными и осуществимыми.
2. Поверенный вправе отступить от указаний доверителя, если по обстоятельствам дела это необходимо в интересах доверителя и поверенный не мог предварительно запросить доверителя либо не получил своевременно ответа на свой запрос. В этом случае поверенный обязан уведомить доверителя о допущенных отступлениях, как только уведомление стало возможным.
3. Соглашением сторон коммерческий представитель может быть освобожден от исполнения обязанности, указанной в пункте 2 настоящей статьи.
Статья 848. Обязанности поверенного
Поверенный обязан: 1) лично исполнять данное ему поручение;
2) сообщать доверителю по его требованию все сведения о ходе исполнения поручения;
3) передать доверителю без промедления все полученное по совершенной сделке;
4) по исполнении поручения без промедления возвратить доверителю доверенность, срок действия которой не истек, и представить отчет с приложением оправдательных документов, если это требуется по характеру поручения;
5) выполнять иные обязанности, предусмотренные законодательными актами Республики Казахстан.
Сноска. Статья 848 с изменением, внесенным Законом РК от 15.07.2010 № 338-IV (порядок введения в действие см. ст. 2).
Статья 849. Обязанности доверителя
1. Доверитель обязан, если иное не предусмотрено договором: 1) обеспечить поверенного средствами, необходимыми для исполнения
поручения; 2) возместить поверенному понесенные расходы, которые были необходимы
для исполнения поручения. 2. Доверитель обязан принять без промедления все исполненное поверенным
в соответствии с договором. 3. Доверитель обязан по исполнении поручения уплатить поверенному
вознаграждение в соответствии с правилами статьи 850 настоящего Кодекса. 4. Законодательными актами Республики Казахстан могут быть
предусмотрены иные обязанности доверителя. Сноска. Статья 849 с изменением, внесенным Законом РК от 15.07.2010 №
338-IV (порядок введения в действие см. ст. 2).
Статья 850. Вознаграждение в договоре поручения
1. Доверитель обязан уплатить поверенному вознаграждение, если это предусмотрено законодательными актами или договором.
Если договор поручения связан с осуществлением обеими сторонами или одной из них предпринимательской деятельности, доверитель обязан уплатить поверенному вознаграждение, если договором не предусмотрено иное.
2. Если договор или законодательные акты содержат указание на возмездность выполнения договора, но не указывают размер вознаграждения, то он определяется с учетом обычно принятых расценок на услуги такого рода.
3. Вознаграждение подлежит выплате и тогда, когда поверенный докажет, что надлежащим образом совершил все требуемые действия, но поручение не было выполнено не по его вине.
Статья 851. Передоверие
1. Поверенный вправе передать исполнение поручения другому лицу ( заместителю), если это предусмотрено договором, либо если поверенный вынужден к этому обстоятельствами в целях охраны интересов доверителя.
2. Поверенный, передоверивший исполнение другому лицу, обязан немедленно уведомить об этом доверителя. Доверитель вправе отвести заместителя, избранного поверенным, кроме случаев, когда такой заместитель был поименован в договоре.
3. Если заместитель поверенного поименован в договоре, поверенный не отвечает за ведение дел его заместителем.
4. Если ведение дел заместителем предусмотрено в договоре, но заместитель в нем не поименован, поверенный не отвечает за виновные действия своего заместителя.
5. Если ведение дел заместителем поверенного в договоре не предусмотрено, поверенный отвечает за любые действия своего заместителя.
Статья 852. Прекращение договора поручения
1. Договор поручения прекращается, наряду с общими основаниями прекращения обязательств, вследствие:
1) отмены поручения доверителем; 2) отказа поверенного;
3) смерти доверителя или поверенного, признания кого-либо из них недееспособным, ограниченно дееспособным или безвестно отсутствующим.
2. Если поверенный не знал и не должен был знать о прекращении договора поручения, то его действия, совершенные по указанию доверителя, обязывают доверителя (его правопреемника) в отношении третьих лиц и поверенного.
3. Сторона, отказывающаяся от договора с поверенным, действующим в качестве предпринимателя, должна уведомить другую сторону о прекращении договора за один месяц, если более длительный срок не предусмотрен договором .
Статья 853. Последствия прекращения договора поручения
1. Если договор поручения прекращен до того, как поручение исполнено поверенным полностью, доверитель обязан возместить поверенному понесенные при исполнении поручения издержки, а когда поверенному причиталось вознаграждение, также уплатить ему вознаграждение соразмерно выполненной им работе. Это правило не применяется к исполнению поверенным поручения после того, как он узнал или должен был узнать о прекращении поручения.
2. Отмена доверителем поручения не является основанием для возмещения убытков, причиненных поверенному прекращением договора, за исключением случаев прекращения договора с поверенным, действующим в качестве предпринимателя.
3. Отказ поверенного от исполнения поручения доверителя не является основанием для возмещения убытков, причиненных доверителю прекращением договора, за исключением случаев отказа поверенного в условиях, когда доверитель лишен возможности иначе обеспечить свои интересы, а также случаев прекращения договора поверенным, действующим в качестве предпринимателя.
Статья 854. Правопреемство в договоре поручения
1. В случае смерти поверенного его наследники или иные лица, на которых возложено обеспечение сохранности наследственного имущества, обязаны известить доверителя о прекращении договора поручения и принять меры, необходимые для охраны имущества доверителя, в частности, сохранить вещи, а также документы доверителя, и затем передать их ему.
Такая же обязанность лежит на ликвидаторе юридического лица, являющегося поверенным.
2. При реорганизации юридического лица, действующего в качестве представителя, доверитель должен быть незамедлительно уведомлен об этом в соответствии со настоящего Кодекса. В указанном случае права истатьей 48 обязанности такого юридического лица переходят к его правопреемнику, если доверитель в разумный срок не сообщит о своем отказе от договора.
Глава 42. Действия в чужом интересе без поручения
Статья 855. Условия действий в чужом интересе
1. Действия без поручения, иного указания или заранее обещанного согласия заинтересованного лица в целях предотвращения вреда его личности или
имуществу, исполнения его обязательства или в его иных непротивоправных интересах (действия в чужом интересе) должны совершаться, исходя из очевидной выгоды или пользы и действительных или вероятных намерений заинтересованного лица, с необходимой по обстоятельствам дела заботливостью и осмотрительностью.
2. Правила, предусмотренные настоящей главой, не применяются к действиям в интересе других лиц, совершаемым государственными органами, для которых такие действия являются одной из целей их деятельности.
Статья 856. Уведомление заинтересованного лица о действиях в его интересе
1. Лицо, действующее в чужом интересе, обязано при первой возможности сообщить об этом заинтересованному лицу и выждать в течение разумного срока решения об одобрении или о неодобрении предпринятых действий, если только ожидание не повлечет серьезного ущерба для заинтересованного лица.
2. Не требуется специально сообщать заинтересованному лицу о действиях в его интересе, если эти действия предпринимаются в его присутствии.
Статья 857. Последствия одобрения заинтересованным лицом действий в его интересе
Если лицо, в интересе которого предпринимаются действия без его поручения, одобрит эти действия, к отношениям сторон в дальнейшем применяются правила о договоре поручения или ином договоре, соответствующем характеру предпринятых действий, даже если одобрение было устным.
Статья 858. Последствия неодобрения заинтересованным лицом действий в его интересе
1. Действия в чужом интересе, совершенные после того, как тому, кто их совершает, стало известно, что они не одобряются заинтересованным лицом, не влекут для последнего обязанностей ни в отношении совершившего эти действия , ни в отношении третьих лиц.
2. Действия с целью предотвратить опасность для жизни лица, оказавшегося в опасности, допускаются и против воли этого лица, а исполнение обязанности по содержанию кого-либо - против воли того, на ком лежит эта обязанность.
Статья 859. Возмещение убытков лицу, действовавшему в чужом интересе
1. Необходимые расходы и иной реальный ущерб, понесенные лицом, действовавшим в чужом интересе в соответствии с правилами, предусмотренными настоящей главой, подлежат возмещению заинтересованным лицом, за исключением расходов, которые вызваны действиями, указанными в пункте 1 настоящего Кодекса.статьи 858
Право на возмещение необходимых расходов и иного реального ущерба сохраняется и в том случае, когда действия в чужом интересе не привели к предполагаемому результату. Однако в случае предотвращения ущерба имуществу другого лица размер возмещения не должен превышать стоимость имущества.
2. Расходы и иные убытки лица, действовавшего в чужом интересе, понесенные им в связи с действиями, которые предприняты после получения одобрения от заинтересованного лица ( настоящего Кодекса),статья 857 возмещаются по правилам о договоре соответствующего вида.
Статья 860. Вознаграждение за действия в чужом интересе
Лицо, действия которого в чужом интересе привели к положительному для заинтересованного лица результату, имеет право на получение вознаграждения, если такое право предусмотрено законодательными актами, соглашением с заинтересованным лицом или обычаями делового оборота.
Статья 861. Последствия совершения сделки в чужом интересе
Обязанности по сделке, заключенной в чужом интересе, переходят к лицу, в интересах которого она совершена, при условии одобрения им этой сделки и если другая сторона не возражает против такого перехода либо при заключении сделки знала или должна была знать о том, что сделка заключена в чужом интересе.
При переходе обязанностей по сделке к лицу, в интересах которого она была заключена, последнему должны быть переданы и права по этой сделке.
Статья 862. Неосновательное обогащение вследствие действий в чужом интересе
Если действия, непосредственно не направленные на обеспечение интересов другого лица, в том числе в случае, когда совершившее их лицо ошибочно
предполагало, что действует в своем интересе, привели к неосновательному обогащению другого лица, применяются правила, предусмотренные главой 48 настоящего Кодекса.
Статья 863. Возмещение вреда, причиненного действиями в чужом интересе
Отношения по возмещению вреда, причиненного действиями в чужом интересе, заинтересованному лицу или третьим лицам, регулируются правилами, предусмотренными настоящего Кодекса.главой 47
Статья 864. Отчет лица, действовавшего в чужом интересе
Лицо, действовавшее в чужом интересе, обязано представить лицу, в интересах которого осуществлялись действия, отчет с указанием полученных доходов и понесенных расходов и иных убытков.
Глава 43. Комиссия
Статья 865. Договор комиссии
1. По договору комиссии одна сторона (комиссионер) обязуется по поручению другой стороны (комитента) за вознаграждение совершить одну или несколько сделок от своего имени за счет комитента.
2. Договор комиссии должен быть заключен в письменной форме.
Статья 866. Комиссионное вознаграждение
Комитент обязан уплатить вознаграждение комиссионеру, а в случае, предусмотренном в пункте 2 настоящей главы, также дополнительноестатьи 868 вознаграждение в размере, установленном в договоре. Если договором этот размер не предусмотрен и не может быть определен, исходя из его условий, размер вознаграждения устанавливается в соответствии с статьи 385пунктом 3 настоящего Кодекса.
Если договор комиссии не был исполнен по причинам, зависящим от комитента, комиссионер сохраняет право на комиссионное вознаграждение, а также на возмещение понесенных расходов.
Статья 867. Права и обязанности комиссионера по сделке с третьим лицом
1. По сделке, совершенной комиссионером с третьим лицом, приобретает права и становится обязанным комиссионер, хотя бы комитент и был назван в сделке или вступил с третьим лицом в непосредственные отношения по сделке.
Комиссионер обязан извещать комитента о заключении сделки с третьим лицом.
2. По требованию комитента комиссионер обязан передать ему права по такой сделке, уведомив о передаче третье лицо, с которым совершена сделка. Последнее не вправе выдвигать против требований комитента возражений, основанных на своих требованиях к комиссионеру, не вытекающих из данной сделки.
Сноска. Статья 867 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 868. Исполнение комиссионного поручения
1. Комиссионер должен выполнить все обязанности и осуществить все права, вытекающие из сделки, заключенной им с третьим лицом.
2. Принятое на себя поручение комиссионер обязан исполнить в соответствии с указаниями комитента, а при отсутствии в договоре таких указаний - в соответствии с обычаями делового оборота или иными обычно предъявляемыми требованиями, на наиболее выгодных для комитента условиях. Если комиссионер совершил сделку на условиях более выгодных, чем те, которые были указаны комитентом, то выгода делится сторонами поровну, если иное не предусмотрено договором.
3. Комиссионер не отвечает перед комитентом за неисполнение третьим лицом сделки, совершенной с ним за счет комитента, кроме случаев, когда комиссионер не проявил необходимой осмотрительности в выборе этого лица либо принял на себя ручательство за исполнение сделки (делькредере).
4. В случае нарушения третьим лицом сделки, заключенной с ним комиссионером, комиссионер обязан немедленно сообщить об этом комитенту, собрать и обеспечить необходимые доказательства.
5. Комитент, уведомленный о нарушении третьим лицом сделки, заключенной с ним комиссионером, имеет право требовать передачи ему требований комиссионера к этому лицу по такой сделке.
Статья 869. Субкомиссия
1. Если иное не предусмотрено договором, комиссионер вправе заключить с другим лицом договор субкомиссии, оставаясь ответственным за действия субкомиссионера перед комитентом.
По договору субкомиссии комиссионер приобретает права и обязанности комитента по отношению к субкомиссионеру, за исключением прав, предусмотренных пунктом 2 настоящего Кодекса.статьи 867
В случаях, когда законодательными актами допускается совершение каких- либо сделок только специально уполномоченными лицами, договор субкомиссии может быть заключен лишь с таким лицом.
2. До прекращения договора комиссии комитент не вправе вступать в непосредственные отношения с субкомиссионером, если иное не предусмотрено договором комитента с комиссионером.
Статья 870. Отступление от указаний комитента
1. Комиссионер вправе отступить от указаний комитента в случаях, предусмотренных пунктом 2 настоящего Кодекса.статьи 847
2. Комиссионер, продавший имущество по цене ниже согласованной с комитентом, обязан возместить последнему разницу, если не докажет, что у него не было возможности продать имущество по согласованной цене и продажа по более низкой цене предупредила еще большие убытки, а также то, что он не имел возможности получить предварительного согласия комитента на отступление от его указаний.
3. Если комиссионер купит имущество по цене выше согласованной с комитентом, комитент, не желающий принять такую покупку, обязан заявить об этом комиссионеру без промедления по получении извещения о заключении сделки с третьим лицом. В противном случае покупка признается принятой комитентом.
Если комиссионер сообщит, что принимает разницу в цене на свой счет, комитент не вправе отказаться от заключенной для него сделки.
Статья 871. Права на имущество, являющееся предметом комиссии
1. Имущество, поступившее к комиссионеру от комитента либо приобретенное комиссионером за счет комитента, является собственностью комитента.
2. Комиссионер вправе удержать имущество, подлежащее передаче комитенту либо третьему лицу по заключенной комиссионером сделке, до выплаты причитающихся ему по договору комиссии сумм.
Статья 872. Удержание комиссионером причитающихся ему сумм
Комиссионер вправе удержать причитающиеся ему по договору комиссии суммы из всех сумм, поступивших к нему за счет комитента.
Статья 873. Ответственность комиссионера
Сноска. Заголовок статьи 873 в редакции Закона РК от 27.02.2017 (№ 49-VI вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
1. Комиссионер отвечает перед комитентом за всякое упущение, повлекшее утрату, недостачу или повреждение находящегося у него имущества комитента.
2. Если при приеме комиссионером имущества, присланного комитентом либо поступившего к комиссионеру для комитента, в этом имуществе окажутся повреждения или иные недостатки, которые могут быть замечены при наружном осмотре, а также в случае причинения кем-либо ущерба имуществу комитента, находящемуся у комиссионера, комиссионер обязан принять меры к охране прав комитента, собрать необходимые доказательства и обо всем без промедления известить комитента. При выполнении указанных условий комиссионер не отвечает за убытки комитента.
3. Комиссионер, не застраховавший находящееся у него имущество комитента, отвечает за это лишь в случаях, когда комитент предписал ему застраховать имущество или страхование этого имущества обязательно в силу закона.
4. Комиссионер несет ответственность, предусмотренную законами Республики Казахстан, за неисполнение обязанностей по сделке с третьим лицом .
5. Расходы, вызванные неисполнением комиссионером своих обязанностей по сделке с третьим лицом, покрываются за счет комиссионера.
Сноска. Статья 873 с изменениями, внесенными Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 874. Сделка на себя
1. Если комитент не обусловил иного, договор комиссии может быть осуществлен комиссионером таким образом, что он сам в качестве продавца поставляет товар, который он должен купить, или сам в качестве покупателя принимает товар, который он должен продать.
2. Комиссионер, самостоятельно поставивший товар в качестве продавца или принявший его в качестве покупателя, имеет право на обычные комиссионные и может выставлять счета по возмещению расходов, возникающих из комиссионных сделок.
Статья 875. Принятие комитентом исполненного по договору комиссии
Комитент обязан: 1) принять от комиссионера все исполненное по договору;
2) осмотреть имущество, приобретенное для него комиссионером, и известить последнего без промедления об обнаруженных в этом имуществе недостатках;
3) освободить комиссионера от обязательств, принятых им на себя перед третьим лицом по исполнению комиссионного поручения.
Статья 876. Возмещение расходов по исполнению комиссионного поручения
1. Комитент обязан, помимо уплаты комиссионного вознаграждения, а в соответствующих случаях и дополнительного вознаграждения за делькредере, возместить комиссионеру израсходованные им по исполнению поручения суммы .
2. Комиссионер не имеет права на возмещение расходов по хранению находящегося у него имущества комитента, если в законодательных актах или договоре не установлено иное.
Статья 877. Отмена поручения комитентом
Комитент вправе в любое время отменить данное комиссионеру поручение. При этом убытки комиссионера, вызванные отменой поручения, возмещаются на общих основаниях.
В случае отмены поручения комитент обязан распорядиться находящимся у комиссионера имуществом в течение месяца с момента отмены поручения, если договором не установлен иной срок. Если комитент не выполнит этой обязанности, комиссионер вправе либо сдать имущество на хранение, либо продать его по возможно более выгодной для комитента цене.
Статья 878. Отказ комиссионера от исполнения поручения
1. Комиссионер не вправе, если иное не предусмотрено договором, отказаться от исполнения принятого поручения, за исключением случаев, когда нарушение
комитентом своих обязанностей влечет за собой невозможность исполнения поручения в соответствии с указаниями комитента или невозможность исполнения возникает вследствие иных обстоятельств, за которые комиссионер не отвечает.
Комиссионер обязан письменно уведомить комитента о своем отказе и принять меры к сохранности находящегося у него имущества комитента.
Комитент, поставленный в известность об отказе комиссионера исполнить поручение, обязан распорядиться находящимся у комиссионера имуществом в течение месяца со дня получения отказа, если договором не установлен иной срок. Если он не выполнит этой обязанности, комиссионер вправе либо сдать имущество на хранение, либо продать его по возможно более выгодной для комитента цене.
2. Комиссионер, отказавшийся от исполнения поручения вследствие нарушения комитентом своих обязанностей, сохраняет право на комиссионное вознаграждение, а также на возмещение понесенных расходов.
Статья 879. Прекращение договора комиссии
1. В случае отмены комитентом всех поручений, предусмотренных договором комиссии, договор прекращается.
2. Договор комиссии прекращается, помимо общих оснований, также вследствие:
1) отказа комиссионера от исполнения договора; 2) смерти комиссионера, признания его недееспособным, ограниченно
дееспособным, безвестно отсутствующим или несостоятельным (банкротом).
Статья 880. Отказ комитента от договора, заключенного без указания срока
Комитент вправе в любое время отказаться от договора комиссии, заключенного без указания срока, уведомив комиссионера об отказе не позднее чем за один месяц, если более продолжительный срок уведомления не предусмотрен договором.
В этом случае комитент обязан выплатить комиссионеру вознаграждение за сделки, совершенные им до прекращения договора, а также возместить комиссионеру понесенные им до прекращения договора расходы.
Статья 881. Отказ комиссионера от договора, заключенного без указания срока
1. Комиссионер вправе в любое время отказаться от договора комиссии, заключенного без указания срока, уведомив комитента об отказе не позднее чем за один месяц, если более продолжительный срок уведомления не предусмотрен договором.
В этом случае комиссионер обязан принять меры к сохранности находящегося у него имущества комитента. Комитент обязан до момента прекращения договора распорядиться находящимся у комиссионера имуществом . Если он не выполнит этой обязанности, комиссионер вправе либо сдать имущество на хранение, либо продать его по возможно более выгодной для комитента цене.
2. Комиссионер, отказавшийся от договора, имеет право на получение комиссионного вознаграждения и возмещение расходов, причитающиеся ему на момент прекращения договора.
Статья 882. Правопреемство в договоре комиссии
1. В случае реорганизации юридического лица-комиссионера его права и обязанности переходят к правопреемникам, если в течение месяца со дня получения извещения о состоявшейся реорганизации комитент не сообщит о расторжении договора.
2. В случае смерти комитента-гражданина, признания его недееспособным, ограниченно дееспособным, безвестно отсутствующим, а также в случае ликвидации юридического лица-комитента комиссионер обязан продолжать исполнение данного ему поручения до тех пор, пока от наследников или представителей комитента не поступят надлежащие указания.
Глава 44. Доверительное управление имуществом
Статья 883. Понятие и основания возникновения доверительного управления имуществом
1. При учреждении доверительного управления имуществом доверительный управляющий обязуется осуществлять от своего имени управление переданным в его владение, пользование и распоряжение имуществом, если иное не предусмотрено договором или законодательными актами, в интересах выгодоприобретателя.
2. Доверительное управление имуществом возникает (учреждается) на основании:
1) сделки (в частности, по договору, по завещанию, в котором назначен исполнитель завещания (доверительный управляющий);
2) судебного акта (при назначении банкротного или реабилитационного управляющего в процедурах банкротства или реабилитации, установлении опеки над имуществом недееспособного, безвестно отсутствующего или объявленного умершим гражданина и в других случаях, предусмотренных законодательными актами Республики Казахстан);
3) административного акта (при установлении опеки над имуществом несовершеннолетнего, умершего; поступлении предпринимателя на государственную службу и в других случаях, предусмотренных законодательными актами).
3. Особенности доверительного управления имуществом при осуществлении банковской деятельности устанавливаются законодательными актами Республики Казахстан, регулирующими банковскую деятельность.
4. Особенности доверительного управления государственным имуществом устанавливаются законодательными актами Республики Казахстан о государственном имуществе, государственно-частном партнерстве, концессиях и иными законодательными актами Республики Казахстан.
Сноска. Статья 883 с изменениями, внесенными законами РК от 12.01.2007 N 225 (вводится в действие со дня его официального опубликования); от 12.02.2009 № 133-IV (порядок введения в действие см. ст. 2); от 01.03.2011 № 414-IV ( вводится в действие со дня его первого официального опубликования); от 04.07.2013 № 131-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 31.10.2015 № 380-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 884. Субъекты доверительного управления имуществом
1. Учредителем может быть собственник, а также субъект иного вещного права или компетентный орган, уполномоченные на передачу имущества в доверительное управление.
2. Доверительным управляющим может быть любое лицо, если иное не предусмотрено законодательными актами.
Назначение доверительным управляющим может быть произведено только с его согласия.
3. Выгодоприобретателем (лицом, в интересах которого осуществляется управление имуществом) может быть любое лицо, не являющееся
доверительным управляющим, а также государство или административно-территориальная единица.
4. Если иное не предусмотрено законодательными актами или договором доверительного управления имуществом, выгодоприобретателем является учредитель доверительного управления имуществом.
Статья 885. Объекты доверительного управления имуществом
1. Объектом доверительного управления может быть любое имущество, включая деньги, ценные бумаги и имущественные права, если иное не предусмотрено законодательными актами.
2. Доверенное имущество подлежит учету доверительным управляющим отдельно от имущества, принадлежащего ему на праве собственности ( хозяйственного ведения, оперативного управления).
3. Имущество, приобретенное и (или) полученное доверительным управляющим в процессе осуществления возложенных на него обязанностей, включается в состав доверенного имущества.
4. Обращение взыскания по долгам учредителя на имущество, переданное им в доверительное управление, не допускается, за исключением случаев, предусмотренных настоящего Кодекса, а также банкротства этогостатьей 1081 лица.
5. Передача заложенного имущества в доверительное управление не лишает залогодержателя права обратить взыскание на это имущество.
Сноска. Статья 885 с изменением, внесенным Законом РК от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 886. Договор доверительного управления имуществом
1. По договору доверительного управления имуществом одна сторона ( учредитель доверительного управления) передает другой стороне ( доверительному управляющему) имущество в доверительное управление, а другая сторона обязуется осуществлять управление этим имуществом в интересах указанного учредителем лица (выгодоприобретателя).
В период действия договора доверительного управления имуществом учредитель доверительного управления не вправе осуществлять какие-либо действия в отношении имущества, находящегося в доверительном управлении, если иное не установлено законодательными актами Республики Казахстан или указанным договором.
2. Договор доверительного управления имуществом должен предусматривать :
1) предмет и срок договора доверительного управления имуществом; 2) состав имущества, передаваемого в доверительное управление; 3) указание о выгодоприобретателе; 4) сроки и форму отчетности доверительного управляющего;
5) указание на лицо, получающее доверенное имущество в случае прекращения договора доверительного управления имуществом.
Для отдельных видов договоров законодательными актами могут быть предусмотрены и иные существенные условия.
Договор может предусматривать и другие условия, в том числе размер и формы вознаграждения управляющего.
В договоре должны быть указаны права третьих лиц на передаваемое в доверительное управление имущество.
3. Нормы о договоре доверительного управления имуществом распространяются на отношения, возникающие по иным основаниям установления доверительного управления имуществом, если иное не вытекает из законодательных актов или существа возникших отношений.
Сноска. В статью 886 внесены изменения - Законом РК от 16 мая 2003 г. N 416.
Статья 887. Форма договора доверительного управления имуществом
1. Договор доверительного управления имуществом заключается в письменной форме.
2. Договор доверительного управления недвижимым имуществом заключается в форме и порядке, предусмотренных для договора об отчуждении недвижимого имущества.
Сноска. Статья 887 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 888. Права и обязанности доверительного управляющего
1. Доверительный управляющий вправе совершать любые действия, какие мог бы совершить собственник с доверенным имуществом с целью надлежащего управления им.
Права доверительного управляющего на доверенное имущество могут быть ограничены законодательными актами, договором или иным актом, на основании которых возникло доверительное управление имуществом.
Доверительный управляющий вправе совершать отчуждение и залог недвижимого имущества только в случаях, когда это прямо предусмотрено в акте об учреждении доверительного управления.
2. Доверительный управляющий имеет право на возмещение необходимых расходов, произведенных им при доверительном управлении имуществом, за счет учредителя (выгодоприобретателя), либо за счет доверенного имущества, либо за счет доходов от использования доверенного имущества.
Доверительный управляющий имеет право на вознаграждение, если это предусмотрено актом об учреждении доверительного управления имуществом.
3. Доверительный управляющий имеет право истребовать вверенное ему имущество из чужого незаконного владения, а также требовать устранения нарушения его права на управление, хотя бы эти нарушения не были связаны с нарушением владения.
4. Доверительный управляющий представляет учредителю и выгодоприобретателю отчет о своей деятельности в сроки и в порядке, установленные договором доверительного управления имуществом. По требованию учредителя и (или) выгодоприобретателя отчет о деятельности доверительного управляющего должен представляться незамедлительно и в иных случаях.
5. Сделка, совершенная доверительным управляющим с нарушением установленных для него ограничений, признается действительной, если участвующие в такой сделке третьи лица не знали и не должны были знать о таких ограничениях. В этом случае доверительный управляющий несет ответственность перед учредителем в соответствии с договором и законодательными актами.
Обязательства по сделке, совершенной доверительным управляющим с превышением предоставленных ему правомочий или с нарушением установленных для него ограничений, несет доверительный управляющий за счет своего имущества.
Статья 889. Передоверие по инициативе доверительного управляющего
1. Доверительный управляющий осуществляет доверительное управление имуществом лично.
2. Доверительный управляющий может поручить другому лицу совершать действия, необходимые для управления доверенным ему имуществом, если он
уполномочен на это актом об учреждении доверительного управления имуществом либо вынужден к этому силой обстоятельств для обеспечения интересов выгодоприобретателя и не имеет при этом возможности испросить указаний учредителя. При этом доверительный управляющий отвечает за действия избранного им поверенного как за свои собственные.
Доверительный управляющий обязан незамедлительно известить учредителя о передоверии. Учредитель, если иное не предусмотрено законодательными актами, в этом случае вправе заявить о прекращении доверительного управления имуществом, возместив доверительному управляющему ранее произведенные расходы, а если доверительное управление является предпринимательской деятельностью, то и возместив убытки.
Сноска. Статья 889 с изменениями, внесенными Законом РК от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Статья 890. Ответственность доверительного управляющего
1. В случае ненадлежащего управления имуществом, учредитель или выгодоприобретатель может предъявить в суде требование о прекращении доверительного управления и возмещении убытков. При этом доверительный управляющий предполагается виновным в ненадлежащем исполнении обязанностей, если не докажет, что принял все зависящие от него меры для надлежащего исполнения обязанностей.
2. Доверительный управляющий несет перед третьими лицами субсидиарную ответственность своим имуществом за убытки, причиненные ненадлежащими действиями по управлению имуществом.
Статья 891. Прекращение договора доверительного управления имуществом
1. Договор доверительного управления имуществом, наряду с общими основаниями прекращения обязательств, прекращается:
1) смертью гражданина - доверительного управляющего, объявления его умершим, признанием его недееспособным или ограниченно дееспособным, безвестно отсутствующим; ликвидацией юридического лица - доверительного управляющего;
2) отказом доверительного управляющего или учредителя в связи с невозможностью для доверительного управляющего лично осуществлять управление доверенным имуществом;
3) отказом учредителя от исполнения договора, при условии выплаты доверительному управляющему убытков и вознаграждения, если оно предусматривалось договором;
4) отказом доверительного управляющего в случае несообщения ему о передаче в управление обремененного залогом имущества с выплатой ему вознаграждения, если оно предусматривалось договором.
2. Переход права собственности на доверенное имущество не прекращает доверительного управления имуществом.
3. При прекращении договора доверительного управления имуществом доверенное имущество передается лицу, которое указано в договоре.
4. При банкротстве учредителя доверительное управление имуществом прекращается и доверенное имущество – передается в имущественную массу.
В случае смерти физического лица-учредителя доверенное имущество поступает в наследственную массу.
5. При прекращении договора по инициативе одной из сторон другая сторона должна быть поставлена в известность не менее чем за три месяца (кроме случаев, предусмотренных подпунктами 2) и 4) пункта 1 настоящей статьи), если иной срок не предусмотрен законодательными актами или договором.
6. Порядок и условия прекращения доверительного управления ценными бумагами устанавливаются законодательством Республики Казахстан о рынке ценных бумаг.
Сноска. Статья 891 с изменениями, внесенными законами РК от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.03.2014 № 177-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 892. Доверительное управление акциями и иными ценными бумагами
1. Доверительный управляющий имеет право осуществлять операции с акциями и иными ценными бумагами, переданными в доверительное управление и (или) приобретенными за счет доверенного имущества либо за счет доходов от использования доверенного имущества.
2. Сведения о доверительном управляющем эмиссионными ценными бумагами подлежат отражению по счету учредителя доверительного управления, открытому профессиональным участником рынка ценных бумаг в порядке, установленном законодательством Республики Казахстан.
3. Доверительный управляющий при управлении доверенными ему акциями ( акцией), если иное не предусмотрено актом об учреждении доверительного управления имуществом:
1) участвует в управлении акционерным обществом; 2) получает причитающиеся на акции дивиденды и передает их
выгодоприобретателю; 3) в случае ликвидации акционерного общества получает причитающееся на
акции имущество и передает его в соответствии с договором выгодоприобретателю или учредителю;
4) осуществляет отчуждение акций и иные операции с ними, включая залог. 4. Особенности доверительного управления ценными бумагами
устанавливаются законодательством Республики Казахстан. Сноска. Статья 892 с изменениями, внесенными Законом РК от 16.05.2003 №
416.
Статья 893. Доверительное управление активами инвестиционных фондов
Особенности доверительного управления активами инвестиционных фондов осуществляются на условиях и в порядке, установленных законодательным актом Республики Казахстан об инвестиционных и венчурных фондах.
Сноска. Статья 893 в редакции Закона РК от 07.07.2004 № 577; с изменением, внесенным Законом РК от 04.07.2018 № 174-VІ (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 894. Доверительное управление предприятием как имущественным комплексом
Доверительное управление предприятием как имущественным комплексом осуществляется на условиях и в порядке, предусмотренных актом об учреждении доверительного управления имуществом, если иное не предусмотрено законодательными актами.
Статья 895. Доверительное управление имуществом государственного служащего
Имущество государственного служащего, используемое для предпринимательской деятельности, подлежит передаче в доверительное управление в случаях и в порядке, предусмотренных законодательными актами.
Глава 45. Комплексная предпринимательская лицензия (франчайзинг)
Статья 896. Понятие договора комплексной предпринимательской лицензии
1. По договору комплексной предпринимательской лицензии одна сторона ( комплексный лицензиар) обязуется предоставить другой стороне (комплексному лицензиату) за вознаграждение комплекс исключительных прав (лицензионный комплекс), включающий, в частности, право использования фирменного наименования лицензиара и охраняемой коммерческой информации, а также других объектов исключительных прав (товарного знака, знака обслуживания, патента и т.п.), предусмотренных договором, для использования в предпринимательской деятельности лицензиата.
2. Договор комплексной предпринимательской лицензии предусматривает использование лицензионного комплекса, деловой репутации и коммерческого опыта лицензиара в определенном объеме (в частности, с установлением минимального и (или) максимального объема использования), с указанием или без указания территории использования, применительно к определенной сфере деятельности (продаже товаров, полученных от лицензиара или произведенных пользователем, осуществлению иной коммерческой деятельности, выполнению работ, оказанию услуг).
3. Ограничения по применению договора комплексной предпринимательской лицензии в отдельных сферах предпринимательской деятельности устанавливаются законодательными актами.
Статья 897. Форма договора комплексной предпринимательской лицензии
Договор комплексной предпринимательской лицензии должен быть заключен в письменной форме.
Статья 897-1. Регистрация предоставления права на использование объекта интеллектуальной собственности по договору комплексной предпринимательской лицензии
Предоставление права на использование изобретений, полезных моделей, промышленных образцов, селекционных достижений, топологий интегральных микросхем, товарных знаков (знаков обслуживания), зарегистрированных в соответствии с законодательством Республики Казахстан или охраняемых без
регистрации в силу международных договоров, по договору комплексной предпринимательской лицензии подлежит регистрации в экспертной организации.
Сноска. Глава 45 дополнена статьей 897-1 в соответствии с Законом РК от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 898. Обязанности лицензиара
Лицензиар обязан в сроки и в объеме, предусмотренные договором, передать лицензиату техническую и коммерческую документацию и представить иную информацию, необходимую лицензиату для осуществления прав, предоставленных ему по договору, а также провести обучение и консультирование лицензиата по вопросам, связанным с осуществлением этих прав.
Договором могут быть предусмотрены и другие обязанности лицензиара.
Статья 899. Обязанности лицензиата
Если иное не предусмотрено договором, лицензиат обязан: 1) использовать при осуществлении предусмотренной договором
деятельности лицензионный комплекс лицензиара указанным в договоре образом ;
2) допускать лицензиара на свою производственную территорию, представлять ему необходимую документацию и оказывать содействие в получении информации, необходимой для осуществления контроля за правильным использованием предоставленных исключительных прав;
3) соблюдать все инструкции и указания лицензиара в отношении характера, способов и условий использования переданных в пользование исключительных прав;
4) не разглашать секреты производства лицензиара и другой полученной от него конфиденциальной коммерческой информации;
5) информировать покупателей (заказчиков) наиболее очевидным для них способом о том, что он использует фирменное наименование, товарный знак, знак обслуживания или иное средство индивидуализации на основании договора комплексной предпринимательской лицензии.
Статья 900. Ограничительные условия
1. Договором комплексной предпринимательской лицензии могут быть предусмотрены ограничительные (эксклюзивные) условия, в частности:
1) обязательство лицензиара не выдавать других аналогичных комплексных предпринимательских лицензий для их использования на закрепленной за лицензиатом территории либо воздержаться от непосредственной самостоятельной деятельности на этой территории;
2) обязательство лицензиата не конкурировать с лицензиаром на территории использования комплексной предпринимательской лицензии в отношении предпринимательской деятельности, осуществляемой лицензиатом с использованием принадлежащих лицензиару исключительных прав;
3) отказ лицензиата от получения других комплексных предпринимательских лицензий у конкурентов (потенциальных конкурентов) лицензиара;
4) обязательство лицензиата согласовывать с лицензиаром место расположения помещений, используемых при осуществлении предоставленных по договору исключительных прав, а также их внешнее и внутреннее оформление.
2. Являются ничтожными ограничительные условия договора комплексной предпринимательской лицензии, в силу которых:
1) лицензиар вправе определять цену продажи товара лицензиатом или цену работ (услуг), выполняемых (оказываемых) лицензиатом, либо устанавливать верхний или нижний предел указанных цен;
2) лицензиат вправе продавать товары, выполнять работы или оказывать услуги исключительно определенной категории покупателей (заказчиков) либо исключительно покупателям (заказчикам), имеющим место нахождения (место жительства) на определенной в договоре территории.
Сноска. Статья 900 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 901. Ответственность лицензиара по требованиям, предъявляемым к лицензиату
Лицензиар несет субсидиарную ответственность по предъявляемым к лицензиату требованиям о несоответствии качества товаров (работ, услуг), продаваемых (выполняемых, оказываемых) лицензиатом по договору комплексной предпринимательской лицензии.
Статья 902. Комплексная предпринимательская сублицензия
1. Договором комплексной предпринимательской лицензии может быть предусмотрено право лицензиата разрешить использование предоставленных ему всех или отдельных исключительных прав другим лицам на условиях, согласованных им с лицензиаром либо определенных в договоре.
2. В договоре комплексной предпринимательской лицензии может содержаться обязанность лицензиата выдать в течение определенного периода времени определенное количество сублицензий с указанием или без указания территории их использования.
3. К договорам комплексной предпринимательской сублицензии применяются правила основного договора лицензиара с лицензиатом, если иное не вытекает из особенностей договора комплексной предпринимательской сублицензии.
Статья 903. Зависимость комплексной предпринимательской сублицензии от основного договора лицензиара с лицензиатом
1. Договор комплексной предпринимательской сублицензии не может быть заключен на более длительный срок, чем основной договор лицензиара с лицензиатом.
2. Прекращение договора комплексной предпринимательской лицензии прекращает заключенные в соответствии с ним все договоры комплексной предпринимательской сублицензии.
3. Если основной договор лицензиара с лицензиатом по основаниям, предусмотренным законодательными актами, признан недействительным, то заключенные в соответствии с ним договоры комплексной предпринимательской сублицензии считаются ничтожными.
Сноска. Статья 903 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 904. Особенности отношений лицензиара, лицензиата и сублицензиата
1. Если иное не предусмотрено договором комплексной предпринимательской лицензии, при его досрочном прекращении права и обязанности лицензиата по договору комплексной предпринимательской сублицензии переходят к лицензиару.
2. Лицензиат несет субсидиарную ответственность за вред, причиненный лицензиару действиями сублицензиатов, если иное не предусмотрено договором комплексной предпринимательской лицензии.
Статья 905. Сохранение договора в силе при изменении фирменного наименования
В случае изменения лицензиаром своего фирменного наименования договор комплексной предпринимательской лицензии сохраняется и действует в отношении нового фирменного наименования лицензиара, если лицензиат не потребует расторжения договора и возмещения убытков. В случае сохранения действия договора лицензиат вправе потребовать соразмерного уменьшения причитающегося лицензиару вознаграждения.
Статья 906. Сохранение договора в силе при изменении одного или нескольких исключительных прав, переданных в пользование
В случае изменения лицензиаром одного или нескольких исключительных прав, переданных в пользование, договор комплексной предпринимательской лицензии сохраняется и действует в отношении новых исключительных прав лицензиара, если лицензиат не потребует расторжения договора и возмещения убытков. В случае сохранения действия договора лицензиат вправе потребовать соразмерного уменьшения причитающегося лицензиару вознаграждения.
Статья 907. Последствия прекращения исключительного права, переданного в пользование
Если в период действия договора комплексной предпринимательской лицензии истек срок действия какого-либо исключительного права, входящего в комплекс переданных в пользование по договору, либо такое право прекратилось по иному основанию, то договор сохраняется, за исключением положений, относящихся к прекратившемуся праву, а лицензиат, если иное не предусмотрено договором, вправе потребовать соразмерного уменьшения причитающегося лицензиару вознаграждения.
Статья 908. Прекращение договора комплексной предпринимательской лицензии
1. Договор комплексной предпринимательской лицензии, заключенный с указанием срока, может быть расторгнут в соответствии с правилами настоящего Кодекса.
2. Сторона в договоре вправе отказаться от бессрочного договора комплексной предпринимательской лицензии, известив об этом другую сторону
за шесть месяцев, если договором не предусмотрен более продолжительный срок извещения.
Статья 909. Правопреемство в договоре комплексной предпринимательской лицензии
1. Переход к другому лицу какого-либо отдельного исключительного права, входящего в лицензионный комплекс, не является основанием для изменения или расторжения договора. Новый правообладатель вступает в договор в части прав и обязанностей, относящихся к перешедшему исключительному праву.
2. В случае смерти лицензиара-гражданина его права и обязанности по договору комплексной предпринимательской лицензии переходят к наследнику при условии, что последний зарегистрирован или в течение шести месяцев со дня открытия наследства зарегистрируется в качестве предпринимателя. В ином случае договор прекращается.
Управление лицензионным комплексом в период до принятия наследником соответствующих прав и обязанностей или до регистрации наследника в качестве предпринимателя осуществляется доверительным управляющим, назначаемым нотариусом в установленном порядке.
Глава 46. Конкурсные обязательства
Статья 910. Содержание конкурсного обязательства
1. Настоящей главой регулируются конкурсные обязательства, возникающие из публичного обещания вознаграждения, и обязательства, возникающие на основе тендера, аукциона и иных форм торгов, установленных законодательными актами Республики Казахстан.
Конкурсные обязательства могут регламентироваться также иными законодательными актами Республики Казахстан.
2. В конкурсном обязательстве его инициатор на основе определенных им предмета и исходных условий конкурса делает предложение принять в нем участие неопределенному или определенному кругу лиц и обязуется выплатить установленное вознаграждение победителю конкурса и (или) заключить с ним договор, соответствующий содержанию конкурсного обязательства.
3. Предложение принять участие в конкурсе может быть сделано инициатором конкурса непосредственно или через посредника-организатора конкурса.
Права и обязанности посредника определяются его договором с инициатором конкурса.
4. Конкурс может быть открытым, когда предложение инициатора конкурса принять участие в конкурсе обращено ко всем желающим путем объявления в печати и иных средствах массовой информации, или закрытым, когда предложение принять участие в конкурсе направляется определенному кругу лиц по выбору инициатора конкурса.
5. Открытый конкурс может быть обусловлен предварительной квалификацией его участников, когда инициатором конкурса проводится предварительный отбор лиц, пожелавших принять участие в конкурсе.
Сноска. Статья 910 с изменениями, внесенными Законом РК от 21.05.2002 № 323.
Статья 911. Публичное обещание вознаграждения
1. Любое лицо, объявившее публично о выплате вознаграждения в денежной или иной форме за лучшее выполнение работы или достижение иных результатов, должно исполнить обязательство перед лицом, которое в соответствии с условиями конкурса признано его победителем.
2. Публичное обещание вознаграждения обязательно должно содержать условия, предусматривающие существо задания, критерии и порядок представления результатов, размер и форму вознаграждения, а также порядок и сроки объявления результатов.
3. Решение о выплате вознаграждения и сама его выплата должны быть приняты и реализованы в установленные обещанием сроки.
4. Если конкурс объявлен на создание произведения науки, литературы или искусства, лицо, давшее публичное обещание, приобретает преимущественное право на заключение с создателем произведения договора на его использование с выплатой гонорара, если иное не установлено публичным обещанием вознаграждения.
5. Лицо, давшее публичное обещание о вознаграждении, обязано возвратить работы, не удостоенные вознаграждения, их создателям, если иное не было предусмотрено условиями конкурса.
Статья 912. Отмена публичного обещания вознаграждения
1. Лицо, объявившее публично о выплате вознаграждения, вправе в той же форме отказаться от данного обещания, кроме случаев, когда в самом объявлении предусмотрена или из него вытекает недопустимость отказа или дан определенный срок для совершения действия, за которое обещано вознаграждение, или к моменту объявления об отказе хотя бы одно из отозвавшихся лиц уже выполнило указанные в объявлении действия.
2. Отмена публичного обещания вознаграждения не освобождает того, кто объявил о вознаграждении, от возмещения отозвавшемуся лицу расходов, понесенных им в связи с совершением предусмотренного объявлением действия. Размер возмещения во всех случаях не может превышать указанного в объявлении вознаграждения.
Статья 913. Особенности проведения лотерей, тотализаторов и иных игр
1. Отношения между государством или лицом, получившим от уполномоченного государственного органа лицензию на проведение тотализаторов и других, основанных на риске, игр, а для лотерей – оператором лотереи и участником таких игр основаны на договоре.
Договор между оператором лотереи и участником лотереи признается заключенным с момента оплаты участником лотереи стоимости лотерейного билета, квитанции или иного документа и выдачи лотерейного билета, квитанции или иного документа.
2. Лицам, которые в соответствии с условиями проведения лотереи, тотализатора или иных игр признаются выигравшими, должен быть выплачен выигрыш инициатором (организатором) игр, а для лотерей – оператором лотереи.
Выплата выигрыша инициатором (организатором) игр в сроки, размере, форме (денежной или в натуре) осуществляется в соответствии с условиями проведения игр, а если срок в этих условиях не был указан – не позднее десяти дней с момента подведения результатов игр.
Выплата выигрыша оператором лотереи осуществляется в сроки, установленные законом, в размере, форме (денежной или в натуре), определяемых условиями проведения лотереи.
3. В случаях неисполнения инициатором (организатором) игр, оператором лотереи указанных в пункте 2 настоящей статьи обязанностей участник, выигравший в лотерее, тотализаторе или в иных играх, вправе требовать выплаты ему выигрыша, а также возмещения причиненных ему убытков.
Сноска. Статья 913 в редакции Закона РК от 09.04.2016 № 496-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 914. Требования, связанные с проведением игр и пари и участием в них
Требования граждан и юридических лиц, связанные с организацией, проведением игр или пари, основанных на риске (азартных игр и пари), или с участием в них, при соблюдении организатором игорного бизнеса условий
проведения азартных игр и (или) пари, не подлежат судебной защите, за исключением требований, вытекающих из отношений, указанных в статье 913 настоящего Кодекса.
Сноска. Статья 914 с изменением, внесенным Законом РК от 04.05.2009 № 157-IV (порядок введения в действие см. ст. 2).
Статья 915. Тендер
1. При торгах в форме тендера его инициатор (организатор) обязуется на основе предложенных им исходных условий заключить договор (в качестве продавца, покупателя, заказчика, подрядчика, арендодателя, арендатора и т.п.) с тем из участников тендера, кто предложит лучшие для инициатора тендера условия договора.
2. Участники тендера, в пределах установленных его условиями сроков, направляют инициатору тендера или его организатору свои предложения в письменном виде с приложением всей обусловленной тендером документации. Условиями тендера может быть предусмотрено направление предложений в запечатанных конвертах и под девизами.
Нарушение сроков подачи предложений влечет за собой исключение лица, пропустившего срок, из числа участников тендера, если его инициатор или организатор не известит письменно это лицо о допуске к участию в тендере.
3. Выбор победителя тендера из числа его участников производится инициатором тендера или созданной им тендерной комиссией в закрытом или, по условиям тендера, в открытом порядке.
4. Тендер может быть признан его инициатором несостоявшимся, если в нем приняло участие менее двух участников или предложения участников тендера будут признаны его инициатором не удовлетворяющими условиям тендера.
5. С победителем тендера его инициатор заключает соответствующий договор. В случае отказа инициатора тендера заключить с победителем соответствующий договор, победитель тендера вправе взыскать причиненные ему убытки.
6. Условиями тендера может быть предусмотрено внесение каждым участником тендера гарантийного взноса, который возвращается участникам после подведения итогов тендера. Гарантийный взнос не возвращается, если участник тендера откажется от своего предложения или изменит его до истечения срока тендера.
Гарантийный взнос не возвращается победителю тендера в случае отказа победителя заключить соответствующий договор с инициатором тендера на условиях, отвечающих предложениям победителя тендера.
Сноска. Статья 915 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 916. Аукцион
1. При торгах в форме аукциона продавец обязуется продать предмет аукциона тому участнику аукциона, который предложит за него наиболее высокую цену.
2. Аукцион может проводиться на условиях повышения или понижения цены от объявленной продавцом.
3. Условиями аукциона, проводимого на понижение цен, может быть предусмотрена минимальная цена, по которой предмет может быть продан.
4. Предметом аукциона может быть любое движимое или недвижимое имущество, не изъятое из гражданского оборота, в том числе объекты интеллектуальной собственности, договоры и имущественные права, включая импортные, экспортные и иные квоты и лицензии.
5. Предложения об участии в аукционе должны содержать сведения о предмете аукциона, месте и времени его проведения.
6. Лица, пожелавшие принять участие в аукционе, должны до начала аукциона, если иное не установлено условиями его проведения, представить заявку на участие в аукционе и внести установленную сумму гарантийного взноса.
7. Аукцион может состояться, если в нем примут участие не менее двух участников (покупателей).
8. Если предмет аукциона не пожелал приобрести ни один из его участников, исходная цена может быть снижена или предмет аукциона снят с данного аукциона.
9. Если иное не установлено условиями аукциона, с участником аукциона, предложившим наибольшую цену, заключается договор о продаже ему предмета аукциона.
10. Если покупатель отказался заключить договор, предусмотренный пунктом 9 настоящей статьи, он исключается из числа участников аукциона, гарантийный взнос ему не возвращается, а предмет аукциона, от приобретения которого отказался покупатель, может быть снова выставлен на торги.
11. Лицам, принявшим участие в аукционе, но ничего не купившим на нем, сумма гарантийного взноса возвращается.
Лицам, купившим какой-либо из предметов аукциона, сумма гарантийного взноса засчитывается в счет уплаченной покупной цены.
Сноска. Статья 916 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Глава 47. Обязательства, возникающие вследствие причинения вреда Параграф 1. Общие положения
Статья 917. Общие основания ответственности за причинение вреда
1. Вред (имущественный и (или) неимущественный), причиненный неправомерными действиями (бездействием) имущественным или неимущественным благам и правам граждан и юридических лиц, подлежит возмещению лицом, причинившим вред, в полном объеме.
Законодательными актами обязанность возмещения вреда может быть возложена на лицо, не являющееся причинителем, а также установлен более высокий размер возмещения.
2. Причинивший вред освобождается от его возмещения, если докажет, что вред причинен не по его вине, за исключением случаев, предусмотренных настоящим Кодексом.
3. Вред, причиненный правомерными действиями, подлежит возмещению в случаях, предусмотренных настоящим Кодексом и иными законодательными актами.
Статья 918. Предупреждение причинения вреда
1. Опасность причинения вреда в будущем может явиться основанием к иску о запрещении действий, создающих такую опасность.
2. Если причиненный вред является последствием эксплуатации предприятия, сооружения либо иной производственной деятельности, которая продолжает причинять вред или угрожает новым вредом, суд вправе обязать ответчика, помимо возмещения вреда, прекратить соответствующую деятельность.
Суд может отказать в иске о прекращении соответствующей деятельности, если ее прекращение противоречит общественным интересам. Отказ в прекращении такой деятельности не лишает потерпевших права на возмещение вреда, причиненного этой деятельностью.
Статья 919. Причинение вреда в состоянии необходимой обороны
Не подлежит возмещению вред, причиненный в состоянии необходимой обороны, если при этом не были превышены ее пределы.
Статья 920. Причинение вреда в состоянии крайней необходимости
Вред, причиненный в состоянии крайней необходимости, то есть для устранения опасности, угрожающей самому причинителю или другим лицам, если эта опасность при данных обстоятельствах не могла быть устранена иными средствами, должен быть возмещен лицом, причинившим вред.
Учитывая обстоятельства, при которых был причинен такой вред, суд может возложить обязанность его возмещения на третье лицо, в интересах которого действовал причинивший вред, либо на это третье лицо и причинителя вреда в долевом порядке, а также освободить от возмещения вреда полностью или частично как это третье лицо, так и причинившего вред.
Статья 921. Ответственность юридического лица или гражданина за вред, причиненный его работником
1. Юридическое лицо либо гражданин возмещает вред, причиненный его работником при исполнении трудовых (служебных, должностных) обязанностей.
2. Применительно к положениям настоящего Кодекса об обязательствах вследствие причинения вреда работниками признаются граждане, выполняющие работу на основании трудового договора, а также на основании гражданско-правового договора, если при этом они действовали или должны были действовать по заданию и под контролем соответствующего юридического лица или гражданина, ответственного за безопасное ведение работ.
Хозяйственные товарищества, акционерные общества и производственные кооперативы возмещают вред, причиненный их участниками (членами) при осуществлении последними предпринимательской, производственной или иной деятельности товарищества, акционерного общества или кооператива.
Сноска. Статья 921 с изменениями, внесенными Законом РК от 15.05.2007 № 253.
Статья 922. Ответственность за вред, причиненный государственными органами, органами местного самоуправления, а также их должностными лицами
1. Вред, причиненный в результате издания государственными органами актов, не соответствующих законодательным актам, подлежит возмещению на основании решения суда, независимо от вины органов и должностных лиц,
издавших акт. Вред возмещается за счет государственной казны. Представителем казны выступают финансовые органы либо другие органы и граждане по специальному поручению.
2. Органы местного самоуправления отвечают за вред, причиненный их органами и должностными лицами, в судебном порядке.
3. Вред, причиненный незаконными действиями (бездействием) должностных лиц государственных органов в области административного управления, возмещается на общих основаниях ( настоящего Кодекса) за счет денегстатья 917 , находящихся в распоряжении этих органов. При их недостаточности вред возмещается субсидиарно за счет государственной казны.
Статья 923. Ответственность за вред, причиненный незаконными действиями органов дознания, предварительного следствия, прокуратуры и суда
1. Вред, причиненный гражданину в результате незаконного осуждения, незаконного привлечения к уголовной ответственности, незаконного применения в качестве меры пресечения заключения под стражу, домашнего ареста, подписки о невыезде, незаконного наложения административного взыскания в виде ареста или исправительных работ, незаконного помещения в психиатрическое или другое лечебное учреждение, возмещается государством в полном объеме, независимо от вины должностных лиц органов дознания, предварительного следствия, прокуратуры и суда, в порядке, установленном законодательными актами.
2. Вред, причиненный гражданину или юридическому лицу в результате иной незаконной деятельности органов дознания, предварительного следствия, прокуратуры, возмещается по основаниям и в порядке, предусмотренном статьей
настоящего Кодекса.922 3. Вред, причиненный незаконными действиями (бездействием) судей и
других работников суда при осуществлении правосудия, кроме случаев, предусмотренных пунктом 1 настоящей статьи, возмещается на общих основаниях и в порядке, установленном пунктом 3 статьи 922 настоящего Кодекса.
Статья 924. Возмещение вреда лицом, застраховавшим свою ответственность
Юридическое лицо или гражданин, застраховавшие свою ответственность в порядке добровольного или обязательного страхования, при недостаточности
страховой суммы для полного возмещения причиненного вреда возмещают разницу между страховой суммой и фактическим размером ущерба.
Статья 925. Ответственность за вред, причиненный несовершеннолетними в возрасте до четырнадцати лет
1. За вред, причиненный несовершеннолетним, не достигшим четырнадцати лет (малолетним), отвечают его законные представители, если не докажут, что вред возник не по их вине.
2. Если малолетний, нуждающийся в опеке, находился в соответствующем воспитательном, лечебном учреждении, учреждении социальной защиты населения или в другом аналогичном учреждении, которое в силу закона является его опекуном, это учреждение обязано возместить вред, причиненный малолетним, если не докажет, что вред возник не по его вине.
3. Если малолетний причинил вред в то время, когда находился под надзором учебного заведения, воспитательного, лечебного или иного учреждения, обязанного осуществлять за ним надзор, а также лица, обязанного осуществлять надзор на основании договора, эти учреждения и лица отвечают за вред, если не докажут, что вред возник не по их вине в осуществлении надзора.
4. Обязанность законных представителей, учебных заведений, воспитательных, лечебных и иных учреждений по возмещению вреда не прекращается с достижением малолетним совершеннолетия или получением им имущества, достаточного для возмещения вреда.
Если законные представители умерли или они, а также другие граждане, указанные в пункте 3 настоящей статьи, не имеют достаточных средств для возмещения вреда, причиненного жизни и здоровью потерпевшего, а сам причинитель, ставший полностью дееспособным, располагает такими средствами , суд, с учетом имущественного положения потерпевшего и причинителя, а также других обстоятельств, вправе принять решение о возмещении вреда полностью или частично за счет имущества самого причинителя.
Сноска. Статья 925 с изменениями, внесенными Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 926. Ответственность за вред, причиненный несовершеннолетними в возрасте от четырнадцати до восемнадцати лет
1. Несовершеннолетние в возрасте от четырнадцати до восемнадцати лет самостоятельно несут ответственность за причиненный ими вред на общих основаниях.
2. В случае, когда у несовершеннолетнего в возрасте от четырнадцати до восемнадцати лет нет имущества или иных источников доходов, достаточных для возмещения вреда, вред должен быть возмещен полностью или в недостающей части его законными представителями, если они не докажут, что вред возник не по их вине.
Если несовершеннолетний в возрасте от четырнадцати до восемнадцати лет, нуждающийся в попечении, находился в соответствующем воспитательном, лечебном учреждении, учреждении социальной защиты населения или в другом аналогичном учреждении, которое в силу закона является его попечителем, эти учреждения обязаны возместить вред полностью или в недостающей части, если не докажут, что вред возник не по их вине.
3. Обязанность законных представителей и соответствующего учреждения по возмещению вреда прекращается по достижении причинившим вред совершеннолетия либо когда у него до достижения совершеннолетия появятся имущество или иные источники доходов, достаточные для возмещения вреда, либо когда он до достижения совершеннолетия приобрел дееспособность (пункт
статьи 17, настоящего Кодекса).2 статья 22-1 Сноска. Статья 926 с изменениями, внесенными законами РК от 12.01.2007 N
225 (вводится в действие со дня его официального опубликования); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 927. Ответственность родителей, лишенных родительских прав, за вред, причиненный несовершеннолетними
На родителя, лишенного родительских прав, суд может возложить ответственность за вред, причиненный его несовершеннолетними детьми в течение трех лет после лишения родителя родительских прав, если будет установлено, что поведение ребенка, повлекшее причинение вреда, явилось следствием ненадлежащего осуществления родителями обязанностей по воспитанию ребенка.
Статья 928. Ответственность за вред, причиненный гражданином, признанным недееспособным
1. Вред, причиненный гражданином, признанным недееспособным (статья 26 настоящего Кодекса), возмещает его опекун или организация, обязанная осуществлять за ним надзор, если они не докажут, что вред возник не по их вине.
2. Обязанность опекуна или организации по возмещению вреда, причиненного гражданином, признанным недееспособным, не прекращается и в случае восстановления его дееспособности.
3. Если опекун умер либо не имеет достаточных средств для возмещения вреда, а сам причинитель располагает такими средствами, суд с учетом имущественного положения потерпевшего и причинителя, а также других обстоятельств, в частности, восстановления дееспособности причинителя вреда, вправе принять решение о возмещении вреда, причиненного жизни и здоровью потерпевшего, полностью или частично за счет имущества самого причинителя.
Статья 929. Ответственность за вред, причиненный гражданином, признанным ограниченно дееспособным
Вред, причиненный гражданином, признанным ограниченно дееспособным вследствие злоупотребления спиртными напитками или наркотическими веществами ( настоящего Кодекса), возмещается самим причинителемстатья 27 на общих основаниях.
Статья 930. Ответственность за вред, причиненный гражданином, не способным понимать значение своих действий
1. Дееспособный гражданин, а также несовершеннолетний в возрасте от четырнадцати до восемнадцати лет, причинившие вред в таком состоянии, когда они не могли понимать значение своих действий или руководить ими, не отвечают за причиненный ими вред.
Если вред причинен жизни или здоровью потерпевшего, суд может с учетом имущественного положения потерпевшего и причинителя, а также других обстоятельств возложить обязанность по возмещению вреда полностью или частично на причинителя.
2. Причинитель не освобождается от ответственности, если сам привел себя в такое состояние употреблением спиртных напитков, наркотических веществ или иным способом.
3. Если вред причинен лицом, которое не могло понимать значения своих действий или руководить ими вследствие душевной болезни или слабоумия, обязанность возместить вред может быть возложена судом на проживающих совместно с этим лицом его трудоспособных: супруга, родителей, совершеннолетних детей, которые знали о таком состоянии причинителя вреда, но не ставили вопрос о признании его недееспособным и учреждении над ним опеки.
Статья 931. Ответственность за вред, причиненный деятельностью, создающей повышенную опасность для окружающих (источником повышенной опасности)
1. Юридические лица и граждане, деятельность которых связана с повышенной опасностью для окружающих (транспортные организации, промышленные предприятия, стройки, владельцы транспортных средств и др.) обязаны возместить вред, причиненный источником повышенной опасности, если не докажут, что вред возник вследствие непреодолимой силы или умысла потерпевшего.
Обязанность возмещения вреда возлагается на юридическое лицо или гражданина, которые владеют источником повышенной опасности на праве собственности, праве хозяйственного ведения или праве оперативного управления либо на любом другом законном основании (договоре имущественного найма, доверенности на право управления транспортным средством, в силу распоряжения компетентного органа о передаче источника и т.п.).
2. Владельцы источников повышенной опасности несут солидарную ответственность за вред, причиненный в результате взаимодействия источников ( столкновения транспортных средств и т.п.) третьим лицам по основаниям, предусмотренным пунктом 1 настоящей статьи.
Вред, причиненный в результате взаимодействия источников повышенной опасности их владельцам, возмещается на общих основаниях. При этом:
1) вред, причиненный по вине одной стороны, возмещается в полном объеме этой стороной;
2) вред, причиненный по вине обеих или нескольких сторон, возмещается соразмерно степени вины каждой из них.
При невозможности установить степень вины каждой из сторон ответственность распределяется между ними поровну.
При отсутствии вины сторон в причинении вреда ни одна из них не имеет права требовать возмещения вреда. Каждая из сторон несет в таком случае риск понесенных ею убытков.
3. Владелец источника повышенной опасности не отвечает за вред, причиненный этим источником, если докажет, что источник выбыл из обладания владельца в результате противоправных действий других лиц. Ответственность за вред, причиненный источником повышенной опасности, в таких случаях несут лица, противоправно завладевшие источником. При наличии вины владельца в
противоправном изъятии из его обладания источника повышенной опасности, ответственность может быть возложена как на владельца, так и на лиц, завладевших источником повышенной опасности.
Статья 932. Ответственность за совместно причиненный вред
Лица, совместно причинившие вред, отвечают перед потерпевшим солидарно .
По заявлению потерпевшего и в его интересах суд вправе возложить на лиц, совместно причинивших вред, долевую ответственность.
Статья 933. Право регресса к лицу, причинившему вред
1. Возместивший вред, причиненный другим лицом (работником при исполнении им трудовых (служебных, должностных) обязанностей, лицом, управляющим транспортным средством, и т.п.), имеет право обратного требования (регресса) к этому лицу в размере выплаченного возмещения, если иной размер не установлен законодательными актами.
2. Причинитель вреда, возместивший совместно причиненный вред, вправе требовать с каждого из причинителей долю выплаченного потерпевшему возмещения в размере, соответствующем степени вины этого причинителя. При невозможности определить степень вины доли признаются равными.
3. Государство, возместившее вред, причиненный должностными лицами органов дознания, предварительного следствия, прокуратуры и суда (пункт 1
настоящего Кодекса), имеет право регресса к этим лицам в случаях,статьи 923 когда вина таких лиц установлена приговором суда, вступившим в законную силу.
4. Лица, возместившие вред по основаниям, указанным в -статьях 925 928 настоящего Кодекса, не имеют права обратного требования (регресса) к лицу, причинившему вред.
Статья 934. Способы возмещения имущественного вреда
Удовлетворяя требования о возмещении вреда, суд в соответствии с обстоятельствами дела обязывает лицо, ответственное за вред, полностью возместить причиненные убытки или возместить его в натуре (предоставить вещь того же рода и качества, исправить поврежденную вещь и т.п.).
Статья 935. Учет вины потерпевшего и имущественного положения лица, причинившего вред
1. Вред, возникший вследствие умысла потерпевшего, возмещению не подлежит.
2. Если грубая неосторожность самого потерпевшего содействовала возникновению или увеличению вреда, то в зависимости от степени вины потерпевшего и причинителя вреда размер возмещения должен быть уменьшен.
3. При грубой неосторожности потерпевшего и отсутствии вины причинителя в случаях, когда его ответственность наступает независимо от вины, размер возмещения должен быть уменьшен или в возмещении вреда может быть отказано, если законодательными актами не предусмотрено иное. При причинении вреда жизни и здоровью гражданина полный отказ в возмещении не допускается.
4. Вина потерпевшего не учитывается при возмещении дополнительных расходов ( настоящего Кодекса), возмещении вреда лицам, понесшимстатья 937 ущерб в результате смерти гражданина ( настоящего Кодекса), а такжестатья 940 при возмещении расходов на погребение ( настоящего Кодекса).статья 946
5. Суд может уменьшить размер возмещения вреда, причиненного гражданином, с учетом его имущественного положения, за исключением случаев , когда вред причинен действиями, совершенными умышленно.
Параграф 2. Возмещение вреда, причиненного жизни и здоровью гражданина
Статья 936. Возмещение вреда, причиненного жизни и здоровью гражданина при исполнении договорных и иных обязательств
Вред, причиненный жизни и здоровью гражданина при исполнении договорных обязательств, трудовых (служебных) обязанностей, обязанностей
воинской службы, возмещается по правилам настоящей главы, если законодательными актами или договором не предусмотрена повышенная ответственность.
Статья 937. Объем и характер возмещения вреда, причиненного повреждением здоровья
1. При причинении гражданину увечья или иного повреждения здоровья возмещению подлежит утраченный потерпевшим заработок (доход), который он имел либо определенно мог иметь, а также расходы, вызванные повреждением здоровья (на лечение, дополнительное питание, приобретение лекарств, протезирование, посторонний уход, санаторно-курортное лечение, приобретение специальных транспортных средств, подготовку к другой профессии и другие),
если признано, что потерпевший нуждается в этих видах помощи и ухода и не получает их бесплатно.
Расходы, вызванные повреждением здоровья (на лечение, дополнительное питание, приобретение лекарств, протезирование, посторонний уход, санаторно-курортное лечение, приобретение специальных транспортных средств, подготовку к другой профессии и другие), возмещаются работодателем, причинившим вред здоровью работника, в пределах, установленных Трудовым
Республики Казахстан.кодексом 2. При определении утраченного заработка (дохода) пособие по
инвалидности, назначенное потерпевшему в связи с увечьем или иным повреждением здоровья, другие виды пособий, назначенные как до, так и после причинения вреда здоровью, а также пенсионные выплаты в счет возмещения не засчитываются. В счет возмещения вреда не засчитывается также заработок, получаемый потерпевшим после повреждения здоровья.
3. Законодательными актами или договором может быть увеличен объем и размер возмещения, причитающегося потерпевшему в соответствии с настоящей статьей.
Сноска. Статья 937 с изменениями, внесенными Законом РК от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 938. Определение заработка (дохода), утраченного в результате повреждения здоровья
1. Размер подлежащего возмещению утраченного заработка (дохода) определяется в процентах к среднему месячному заработку (доходу) до увечья или иного повреждения здоровья либо до наступления утраты трудоспособности, соответствующих степени утраты потерпевшим профессиональной трудоспособности, а при отсутствии ее - общей трудоспособности.
2. В состав утраченного заработка (дохода) включаются все виды оплаты труда по трудовым и гражданско-правовым договорам как по месту основной работы, так и по совместительству, облагаемые индивидуальным подоходным налогом. Не учитываются выплаты единовременного характера (компенсации за неиспользованный отпуск, выходное пособие при увольнении и другие). За период временной нетрудоспособности и отпуска по беременности и родам учитывается выплаченное пособие. Доходы от предпринимательской деятельности, а также авторский гонорар включаются в состав утраченного заработка, при этом доходы от предпринимательской деятельности включаются на основании данных органа государственных доходов.
Все виды заработка (дохода) учитываются в суммах, начисленных до удержания налогов.
3. Среднемесячный заработок (доход) подсчитывается путем деления общей суммы заработка (дохода) за двенадцать месяцев работы, предшествовавших повреждению здоровья либо наступлению утраты трудоспособности, на двенадцать. В случае, когда потерпевший на момент причинения вреда работал менее двенадцати месяцев, среднемесячный заработок (доход) подсчитывается путем деления общей суммы заработка (дохода) за фактически проработанное число месяцев, предшествовавших повреждению здоровья, на число этих месяцев.
Не полностью проработанные потерпевшим месяцы по его желанию заменяются предшествующими полностью проработанными месяцами либо исключаются из подсчетов при невозможности их замены.
4. В случае, когда потерпевший на момент причинения вреда не работал, учитывается по его желанию заработок до увольнения либо обычный размер вознаграждения работника его квалификации в данной местности, но не менее десятикратного установленного законодательными актами месячного расчетного показателя.
5. Если в заработке (доходе) потерпевшего до причинения ему увечья или иного повреждения здоровья произошли устойчивые изменения, улучшающие его имущественное положение (повышена заработная плата по занимаемой должности, переведен на более высокооплачиваемую работу, поступил на работу после окончания учебного заведения и в других случаях, когда будет доказана устойчивость изменения или возможность изменения оплаты труда потерпевшего), при определении его среднемесячного заработка (дохода) учитывается только заработок (доход), который он получил или должен был получить после соответствующего изменения.
6. Исключен Законом РК от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Сноска. Статья 938 с изменениями, внесенными законами РК от 24.12.2001 N 276; от 30.03.2011 № 424-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 07.11.2014 № 248-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 27.04.2015 № 311-V ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 939. Возмещение вреда при повреждении здоровья лица, не достигшего совершеннолетия
1. В случае увечья или иного повреждения здоровья несовершеннолетнего, не достигшего четырнадцати лет (малолетнего) и не имеющего заработка, лица, ответственные за вред, обязаны возместить расходы, связанные с повреждением здоровья.
2. По достижении потерпевшим четырнадцати лет, а также в случае причинения вреда несовершеннолетнему в возрасте от четырнадцати до восемнадцати лет, не имеющему заработка (доходов), лица, ответственные за вред, обязаны возместить потерпевшему, помимо расходов, вызванных повреждением здоровья, также вред, связанный с утратой или уменьшением его трудоспособности, исходя из десятикратного установленного законодательными актами месячного расчетного показателя.
Если к моменту повреждения здоровья несовершеннолетний имел заработок, то вред возмещается, исходя из размера этого заработка, но не ниже десятикратного установленного законодательными актами месячного расчетного показателя.
После начала трудовой деятельности потерпевший вправе требовать увеличения возмещения вреда, исходя из получаемого им заработка, но не ниже размера вознаграждения, установленного по занимаемой им должности или заработка работника той же квалификации по месту его работы.
Сноска. Статья 939 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 940. Возмещение вреда лицам, понесшим ущерб в результате смерти гражданина
1. В случае смерти гражданина право на возмещение вреда имеют нетрудоспособные лица, состоявшие на иждивении умершего или имевшие ко дню его смерти право на получение от него содержания; ребенок умершего, родившийся после его смерти, а также один из родителей, супруг либо другой член семьи, независимо от трудоспособности, который не работает и занят уходом за находившимися на иждивении умершего его детьми, внуками, братьями и сестрами, не достигшими четырнадцати лет (малолетними) либо хотя и достигшими указанного возраста, но, по заключению медицинских органов, нуждающимися по состоянию здоровья в постороннем уходе.
2. Право на возмещение вреда имеют также лица, состоявшие на иждивении умершего гражданина и ставшие нетрудоспособными в течение пяти лет после его смерти.
Один из родителей, супруг либо другой член семьи, неработающий и занятый уходом за указанными в пункте 1 настоящей статьи детьми, внуками, братьями и сестрами умершего, и ставший нетрудоспособным в период осуществления ухода, сохраняет право на возмещение вреда после окончания ухода за этими лицами.
3. Вред возмещается: несовершеннолетним - до достижения восемнадцати лет ; учащимся в возрасте восемнадцати лет и старше - до окончания учебы в учебных заведениях по очной форме обучения, но не более чем до двадцати трех лет; лицам, достигшим пенсионного возраста, установленного законодательством Республики Казахстан о пенсионном обеспечении, - пожизненно; инвалидам - на срок инвалидности; одному из родителей, супругу либо другому члену семьи, занятому уходом за находившимися на иждивении умершего его детьми, внуками, братьями и сестрами, - до достижения ими четырнадцати лет либо изменения состояния здоровья.
Сноска. Статья 940 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 02.04.2019 № 241-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 941. Размер возмещения вреда, понесенного в случае смерти гражданина
1. Лицам, имеющим право на возмещение вреда в связи со смертью гражданина, вред возмещается в размере той доли заработка (дохода) умершего, исчисленного по правилам настоящего Кодекса, которую онистатьи 938 получали или имели право получать на свое содержание при его жизни. При определении возмещения вреда этим лицам в состав доходов умершего, наряду с заработком, включаются получавшиеся им при жизни пенсия, пожизненное содержание и другие аналогичные выплаты.
2. При определении размера возмещения вреда пособия, назначенные лицам по случаю потери кормильца, другие виды пособий, назначенные как до, так и после смерти кормильца, а также заработок, стипендия, пенсионные выплаты не учитываются.
3. Установленный каждому из имеющих право на возмещение вреда по случаю потери кормильца размер возмещения не подлежит дальнейшему
перерасчету, кроме случаев рождения ребенка после смерти кормильца; назначения (прекращения) выплаты возмещения лицам, занятым уходом за детьми, внуками, братьями и сестрами умершего кормильца.
Законодательным актом или договором может быть увеличен объем и размер возмещения.
Статья 942. Изменение размера возмещения вреда
1. Потерпевший, частично утративший трудоспособность, вправе в любое время потребовать от лица, на которого возложена обязанность возмещения вреда, соответствующего увеличения размера возмещения, если его трудоспособность снизилась в связи с причиненным повреждением здоровья по сравнению с той, которая оставалась у него к моменту присуждения ему возмещения.
2. Лица, на которых возложена обязанность возмещения вреда, связанного с повреждением здоровья потерпевшего, вправе потребовать соответствующего снижения размера возмещения, если трудоспособность потерпевшего возросла по сравнению с той, которая оставалась у него к моменту присуждения возмещения за вред.
3. Потерпевший вправе требовать увеличения размера возмещения вреда, если имущественное положение гражданина, на которого возложена обязанность возмещения вреда, улучшилось, а размер возмещения был снижен в соответствии с пунктом 5 настоящего Кодекса.статьи 935
4. Суд может по требованию гражданина, причинившего вред, снизить размер возмещения вреда, если его имущественное положение в связи с инвалидностью либо достижением пенсионного возраста ухудшилось по сравнению с тем, которое было на момент присуждения возмещения вреда (пункт 5 статьи 935 настоящего Кодекса).
Статья 943. Увеличение возмещения вреда в связи с повышением стоимости жизни
Суммы возмещения вреда, выплачиваемые гражданам в связи с повреждением здоровья или смертью потерпевшего, ежегодно увеличиваются пропорционально среднему значению прогнозируемого уровня инфляции.
Сноска. Статья 943 в редакции Закона РК от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 944. Платежи по возмещению вреда
1. Возмещение вреда, связанного со снижением трудоспособности или смертью потерпевшего, производится ежемесячными платежами.
Возмещение вреда в части утраченного заработка потерпевшим при исполнении им трудовых (служебных) обязанностей осуществляется на срок установления степени утраты трудоспособности, но не более достижения им пенсионного возраста, установленного законодательством Республики Казахстан о пенсионном обеспечении.
При этом из сумм возмещения вреда в части утраченного заработка (дохода) удерживаются и перечисляются обязательные пенсионные взносы в единый накопительный пенсионный фонд в размере и порядке, которые установлены
Республики Казахстан "О пенсионном обеспечении в РеспубликеЗаконом Казахстан".
При наличии уважительных причин суд с учетом возможностей причинителя вреда может по требованию гражданина, имеющего право на возмещение, присудить ему причитающиеся платежи единовременно, но не более чем за три года.
2. Взыскание дополнительных расходов может быть произведено на будущее время в пределах сроков, установленных на основе заключения медицинской экспертизы, а также при необходимости предварительной оплаты стоимости услуг и имущества (приобретение путевки, оплата проезда, оплата специальных транспортных средств и т.п.).
3. В случаях, когда потерпевший в соответствии с законодательными актами вправе потребовать прекращения или досрочного исполнения обязательства, такое требование удовлетворяется путем капитализации соответствующих повременных платежей.
Сноска. Статья 944 с изменениями, внесенными законами РК от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 02.08.2015 № 342-V (вводится в действие с 01.01.2016).
Статья 945. Возмещение вреда в случае прекращения юридического лица
1. В случае реорганизации юридического лица, признанного в установленном порядке ответственным за вред, причиненный жизни и здоровью, обязанность по выплате соответствующих платежей несет его правопреемник. К нему же предъявляются требования о возмещении вреда.
2. В случае ликвидации юридического лица, признанного в установленном порядке ответственным за вред, причиненный жизни и здоровью, соответствующие платежи должны быть капитализированы для выплаты их
потерпевшему по правилам, установленным законодательными или иными нормативными правовыми актами.
3. В случаях, когда капитализация платежей не может быть произведена ввиду отсутствия или недостаточности имущества у ликвидируемого юридического лица, присужденные суммы выплачиваются потерпевшему государством в порядке, предусмотренном законодательными актами.
4. После завершения периода капитализации платежей по возмещению вреда, причиненного жизни и здоровью работников, юридическими лицами, ликвидированными вследствие банкротства, гражданину Республики Казахстан осуществляется социальная помощь в виде ежемесячных выплат в порядке, установленном Правительством Республики Казахстан, размеры которых ежегодно увеличиваются пропорционально среднему значению прогнозируемого уровня инфляции.
Сноска. Статья 945 с изменениями, внесенными законами РК от 30.03.2011 № 424-IV (вводится в действие с 01.01.2011); от 27.04.2015 № 311-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 946. Возмещение расходов на погребение
Лица, ответственные за вред, связанный со смертью потерпевшего, обязаны возместить необходимые расходы на погребение лицу, понесшему эти расходы.
Пособие на погребение, полученное гражданами, понесшими эти расходы, в счет возмещения вреда не засчитывается.
Параграф 3. Возмещение вреда, причиненного вследствие недостатков товаров, работ, услуг
Статья 947. Основания возмещения вреда, причиненного вследствие недостатков товаров, работ, услуг
Вред, причиненный жизни, здоровью или имуществу гражданина либо имуществу юридического лица вследствие конструктивных, рецептурных или иных недостатков товара (работы, услуги), а также вследствие недостоверной или недостаточной информации о товаре (работе, услуге), подлежит возмещению продавцом или изготовителем (исполнителем), независимо от их вины и от того, состоял ли потерпевший с ними в договорных отношениях или не состоял. Настоящее правило применяется лишь в случаях приобретения товара (работы, услуги) в потребительских целях.
Статья 948. Лица, ответственные за вред, причиненный вследствие недостатков товаров, работ, услуг
1. Вред, причиненный вследствие недостатков товара, подлежит возмещению по выбору потерпевшего продавцом или изготовителем товара.
2. Вред, причиненный вследствие недостатков работы или услуг, подлежит возмещению их исполнителем.
3. Вред, причиненный вследствие непредставления полной или достоверной информации о свойствах и правилах пользования товаром (работой, услугой), подлежит возмещению в соответствии с правилами пунктов 1, 2 настоящей статьи.
Статья 949. Сроки возмещения вреда, причиненного в результате недостатков товаров, работ, услуг
1. Вред, вызванный недостатками товара (работы, услуги), подлежит возмещению, если он причинен в течение установленных сроков годности ( службы) товара (работы, услуги), а если срок годности (службы) не установлен - в течение десяти лет со дня производства товара (работы, услуги).
2. За пределами сроков, указанных в пункте 1 настоящей статьи, вред подлежит возмещению:
1) если в нарушение требований законодательных актов срок годности ( службы) не установлен;
2) если покупатель (потребитель) не был предупрежден о необходимых действиях по истечении срока годности (службы) и о возможных последствиях при невыполнении указанных действий.
Статья 950. Основания освобождения от ответственности за вред, причиненный вследствие недостатков товаров, работ, услуг
Продавец или изготовитель товара, исполнитель работы или услуги освобождаются от ответственности только в случаях, если докажут, что вред возник вследствие непреодолимой силы или нарушения потребителем правил пользования товаром (результатами работы, услуги) или их хранения.
Параграф 4. Возмещение морального вреда
Статья 951. Возмещение морального вреда
1. Моральный вред – это нарушение, умаление или лишение личных неимущественных благ и прав физических лиц, в том числе нравственные или физические страдания (унижение, раздражение, подавленность, гнев, стыд, отчаяние, физическая боль, ущербность, дискомфортное состояние и т. п.), испытываемые (претерпеваемые, переживаемые) потерпевшим в результате совершенного против него правонарушения, а в случае его смерти в результате такого правонарушения – его близкими родственниками, супругом (супругой).
2. Моральный вред возмещается причинителем при наличии вины причинителя, за исключением случаев, предусмотренных пунктом 3 настоящей статьи.
3. Моральный вред возмещается, независимо от вины причинителя, в случаях , если:
1) вред причинен жизни и здоровью гражданина источником повышенной опасности;
2) вред причинен гражданину в результате его незаконного осуждения, незаконного привлечения к уголовной ответственности, незаконного применения в качестве меры пресечения заключения под стражу, домашнего ареста или подписки о невыезде, незаконного наложения административного взыскания в виде ареста, незаконного помещения в психиатрическое лечебное учреждение или другое лечебное учреждение;
3) вред причинен распространением сведений, порочащих честь, достоинство и деловую репутацию;
4) иных случаях, предусмотренных законодательными актами. 4. Моральный вред, причиненный действиями (бездействием), нарушающими
имущественные права гражданина, возмещению не подлежит, кроме случаев, предусмотренных законодательными актами.
Сноска. Статья 951 с изменениями, внесенными законами РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 952. Размер возмещения морального вреда
1. Моральный вред возмещается в денежной форме. 2. При определении размера морального вреда учитываются как субъективная
оценка потерпевшим либо в случае его смерти в результате совершенного против него правонарушения близкими родственниками, супругом (супругой) тяжести причиненного нравственного ущерба, так и объективные данные,
свидетельствующие о степени нравственных и физических страданий потерпевшего либо в случае его смерти близких родственников, супруга ( супруги): жизненная важность блага, бывшего объектом посягательства (жизнь, здоровье, честь, достоинство, свобода, неприкосновенность жилища и т. д.); тяжесть последствий правонарушения (убийство близких родственников, причинение телесных повреждений, повлекших инвалидность, лишение свободы, лишение работы или жилища и т. п.); характер и сфера распространения ложных позорящих сведений; жизненные условия потерпевшего (служебные, семейные, бытовые, материальные, состояние здоровья, возраст и др.), иные заслуживающие внимания обстоятельства.
3. Моральный вред возмещается независимо от подлежащего возмещению имущественного вреда.
Сноска. Статья 952 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Глава 48. Обязательства вследствие неосновательного обогащения
Статья 953. Обязанность возвратить неосновательное обогащение
1. Лицо (приобретатель), которое без установленных законодательством или сделкой оснований приобрело или сберегло имущество (неосновательно обогатилось) за счет другого лица (потерпевшего), обязано возвратить последнему неосновательно приобретенное или сбереженное имущество, за исключением случаев, предусмотренных настоящего Кодекса.статьей 960
2. Обязанность, установленная пунктом 1 настоящей статьи, возникает также, если основание, по которому приобретено или сбережено имущество, отпало впоследствии.
3. Правила настоящей главы применяются независимо от того, явилось ли неосновательное обогащение результатом поведения приобретателя имущества, самого потерпевшего или третьих лиц либо следствием события.
Статья 954. Соотношение требований о возврате неосновательного обогащения с другими требованиями о защите гражданских прав
Если иное не установлено настоящим Кодексом, другими законодательными актами и не вытекает из существа соответствующих отношений, правила настоящей главы подлежат применению также к требованиям:
1) о возврате исполненного по недействительной сделке;
2) об истребовании имущества собственником из чужого незаконного владения;
3) одной стороны в обязательстве к другой о возврате исполненного в связи с этим обязательством;
4) о возмещении вреда, в том числе причиненного недобросовестным поведением обогатившегося лица.
Статья 955. Возвращение неосновательного обогащения в натуре
1. Имущество, составляющее неосновательное обогащение приобретателя, должно быть возвращено потерпевшему в натуре.
2. Приобретатель отвечает перед потерпевшим за всякую, в том числе и за случайную недостачу или ухудшение неосновательно приобретенного или сбереженного имущества, происшедшие после того, как он узнал или должен был узнать о неосновательности обогащения. До этого момента он отвечает лишь за умысел и грубую неосторожность.
Статья 956. Возмещение стоимости неосновательного обогащения
1. В случае невозможности возвратить в натуре неосновательно полученное или сбереженное имущество приобретатель должен возместить потерпевшему реальную стоимость этого имущества на момент его приобретения, а также возместить убытки, вызванные последующим изменением стоимости имущества, если приобретатель не возместил его стоимость немедленно после того, как узнал о неосновательности обогащения.
2. Лицо, неосновательно временно пользовавшееся чужим имуществом (без намерения его приобрести) либо чужими услугами, должно возместить потерпевшему то, что сберегло вследствие такого пользования, по цене, существовавшей на момент, когда закончилось пользование, и в том месте, где оно происходило.
Статья 957. Последствия неосновательной передачи права другому лицу
Лицо, передавшее путем уступки требования или иным образом принадлежащее ему право другому лицу на основании несуществующего или недействительного обязательства, вправе требовать восстановления прежнего положения, в том числе возвращения ему документов, удостоверяющих переданное право.
Статья 958. Возмещение потерпевшему неполученных доходов
1. Лицо, которое неосновательно получило или сберегло имущество, обязано возвратить или возместить потерпевшему все доходы, которые оно извлекло или должно было извлечь из этого имущества с того времени, когда узнало или должно было узнать о неосновательности обогащения.
2. На сумму неосновательного денежного обогащения подлежит начислению неустойка за пользование чужими деньгами с того времени, когда приобретатель узнал или должен был узнать о неосновательности получения или сбережения денег.
Статья 959. Возмещение затрат на имущество, подлежащее возврату
При возврате неосновательно полученного или сбереженного имущества ( настоящего Кодекса) или возмещении его стоимости (статья 955 статья 956
настоящего Кодекса) приобретатель вправе требовать от потерпевшего возмещения понесенных необходимых затрат на содержание и сохранение имущества с того времени, с которого он обязан возвратить доходы (статья 958 настоящего Кодекса), с зачетом полученных им выгод. Право на возмещение затрат утрачивается в случаях, когда приобретатель умышленно удерживал имущество, подлежавшее возврату.
Статья 960. Неосновательное обогащение, не подлежащее возврату
Не подлежит возврату в качестве неосновательного обогащения: 1) имущество, переданное во исполнение обязательства до наступления срока
исполнения, если обязательством не предусмотрено иное; 2) имущество, переданное во исполнение обязательства по истечении срока
исковой давности; 3) денежные суммы и иное имущество, предоставленные гражданину, при
отсутствии недобросовестности с его стороны, в качестве средств для существования (заработная плата, авторское вознаграждение, возмещение вреда жизни или здоровью, пенсия, алименты и т.п.) и использованные приобретателем ;
4) денежные суммы и иное имущество, предоставленные во исполнение несуществующего обязательства, если приобретатель докажет, что лицо, требующее возврата имущества, знало об
отсутствии обязательства либо предоставило имущество в целях благотворительности.
Раздел 5 Право интеллектуальной собственности Глава 49. Общие положения
Статья 961. Объекты права интеллектуальной собственности
1. К объектам права интеллектуальной собственности относятся: 1) результаты интеллектуальной творческой деятельности; 2) средства индивидуализации участников гражданского оборота, товаров,
работ или услуг. 2. К результатам интеллектуальной творческой деятельности относятся: 1) произведения науки, литературы и искусства; 2) исполнения, постановки, фонограммы и передачи организаций эфирного и
кабельного вещания; 3) изобретения, полезные модели, промышленные образцы; 4) селекционные достижения; 5) топологии интегральных микросхем; 6) нераскрытая информация, в том числе секреты производства (ноу-хау); 7) другие результаты интеллектуальной творческой деятельности в случаях,
предусмотренных настоящим Кодексом или иными законодательными актами. 3. К средствам индивидуализации участников гражданского оборота, товаров,
работ или услуг относятся: 1) фирменные наименования; 2) товарные знаки (знаки обслуживания); 3) наименования мест происхождения (указания происхождения) товаров;
4) другие средства индивидуализации участников гражданского оборота, товаров и услуг в случаях, предусмотренных настоящим Кодексом и законодательными актами.
Сноска. Статья 961 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 962. Основания возникновения прав на объекты интеллектуальной собственности
Права на объекты интеллектуальной собственности возникают в силу факта их создания либо вследствие предоставления правовой охраны уполномоченным государственным органом в случаях и в порядке, предусмотренных настоящим Кодексом и иными законодательными актами.
Статья 963. Личные неимущественные и имущественные права на объекты интеллектуальной собственности
1. Авторам результатов интеллектуальной творческой деятельности принадлежат в отношении этих результатов личные неимущественные и имущественные права.
Личные неимущественные права принадлежат автору, независимо от его имущественных прав, и сохраняются за ним в случае перехода его имущественных прав на результаты интеллектуальной творческой деятельности к другому лицу.
2. Обладателям права на средства индивидуализации участников гражданского оборота, товаров или услуг (далее - средства индивидуализации) принадлежат в отношении этих средств имущественные права.
3. Право признаваться автором результата интеллектуальной творческой деятельности (право авторства) является личным неимущественным правом и может принадлежать только лицу, творческим трудом которого создан результат интеллектуальной творческой деятельности.
Право авторства неотчуждаемо и непередаваемо. Если результат создан совместным творческим трудом двух или более лиц,
они признаются соавторами. В отношении отдельных объектов интеллектуальной собственности законодательными актами может быть ограничен круг лиц, которые признаются соавторами произведения в целом.
Статья 964. Исключительные права на объекты интеллектуальной собственности
1. Исключительным правом на результат интеллектуальной творческой деятельности или средство индивидуализации признается имущественное право их обладателя использовать объект интеллектуальной собственности любым способом по своему усмотрению.
Использование объекта исключительных прав другими лицами допускается с согласия правообладателя либо в иных случаях, предусмотренных законами Республики Казахстан.
2. Обладатель исключительного права на объект интеллектуальной собственности вправе передать это право другому лицу полностью или частично, разрешить использовать объект интеллектуальной собственности и распорядиться им иным образом, если это не противоречит правилам настоящего Кодекса и иных законодательных актов.
3. Ограничения исключительных прав, признание этих прав недействительными и их прекращение (аннулирование) допускаются в случаях, пределах и порядке, установленных настоящим Кодексом и иными законодательными актами.
Сноска. Статья 964 с изменениями, внесенными Законом РК от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 965. Переход исключительных прав к другому лицу
1. Исключительные права на объект интеллектуальной собственности, если иное не предусмотрено настоящим Кодексом или иными законодательными актами, могут быть переданы их правообладателем полностью или частично по договору другому лицу, а также переходят в порядке универсального правопреемства по наследству и в результате реорганизации юридического лица – правообладателя.
Передача исключительных прав не должна ограничивать осуществление права авторства и иных неимущественных прав. Условия договора о передаче или ограничении таких прав ничтожны.
2. К договору, предусматривающему предоставление исключительного права в период его действия другому лицу на ограниченное время, применяются правила о лицензионном договоре (статья 966 настоящего Кодекса).
Сноска. Статья 965 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 966. Лицензионный договор
1. По лицензионному договору сторона, обладающая исключительным правом на результат интеллектуальной творческой деятельности или на средство индивидуализации (лицензиар), предоставляет другой стороне (лицензиату) право временно использовать соответствующий объект интеллектуальной собственности определенным способом.
Лицензионный договор предполагается возмездным. 2. Лицензионный договор может предусматривать предоставление
лицензиату: 1) права использования объекта интеллектуальной собственности с
сохранением за лицензиаром возможности его использования и права выдачи лицензии другим лицам (простая, неисключительная лицензия);
2) права использования объекта интеллектуальной собственности без сохранения за лицензиаром возможности его использования и без права выдачи лицензии другим лицам (исключительная лицензия);
3) других не противоречащих законодательным актам условий использования объекта интеллектуальной собственности.
Если в лицензионном договоре не предусмотрено иное, лицензия предполагается простой (неисключительной).
3. Договор о предоставлении лицензиатом права использования объекта интеллектуальной собственности другому лицу признается сублицензионным договором. Лицензиат вправе заключить сублицензионный договор лишь в случаях, предусмотренных лицензионным договором.
Ответственность перед лицензиаром за действия сублицензиата несет лицензиат, если лицензионным договором не предусмотрено иное.
Сноска. Статья 966 с изменениями, внесенными Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 967. Договор о создании и использовании результатов интеллектуальной творческой деятельности
1. Автор может принять на себя по договору обязательство создать произведение, изобретение или иной результат интеллектуальной творческой деятельности и предоставить заказчику, не являющемуся его работодателем, исключительные права на его использование.
2. Договор, предусмотренный в пункте 1 настоящей статьи, должен определять характер подлежащего созданию результата интеллектуальной творческой деятельности, а также цели либо способы его использования.
3. Условия договора, ограничивающие право автора создавать результаты интеллектуальной творческой деятельности определенного рода либо в определенной области, ничтожны.
Сноска. Статья 967 с изменением, внесенным Законом РК от 27.02.2017 № 49 -VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 968. Исключительное право и право собственности
Исключительное право на результат интеллектуальной творческой деятельности или средство индивидуализации существует независимо от права собственности на материальный объект, в котором такой результат или средство индивидуализации выражены.
Статья 969. Срок действия исключительных прав
1. Исключительное право на объекты интеллектуальной собственности действует в течение срока, предусмотренного настоящим Кодексом или иными законодательными актами.
Законодательные акты могут предусматривать возможность продления такого срока.
2. Личные неимущественные права на результаты интеллектуальной творческой деятельности действуют бессрочно.
3. В случаях, предусмотренных законодательными актами, действие исключительного права может прекращаться вследствие его неиспользования в течение определенного времени.
Статья 970. Способы защиты исключительных прав
1. Защита исключительных прав осуществляется способами, предусмотренными настоящего Кодекса. Защита исключительных правстатьей 9 может осуществляться также путем:
1) изъятия материальных объектов, с использованием которых нарушены исключительные права, и материальных объектов, созданных в результате такого нарушения;
2) обязательной публикации о допущенном нарушении, с включением в нее сведений о том, кому принадлежит нарушенное право;
3) иными способами, предусмотренными законодательными актами. 2. При нарушении договоров об использовании результатов
интеллектуальной творческой деятельности и средств индивидуализации применяются общие правила об ответственности за нарушение обязательств (
настоящего Кодекса).глава 20
Глава 50. Авторское право
Статья 971. Произведения, охраняемые авторским правом (объекты авторского права)
1. Авторское право распространяется на произведения науки, литературы и искусства, являющиеся результатом творческой деятельности, независимо от их назначения, содержания и достоинства, а также способа и формы их выражения.
2. Авторское право распространяется как на обнародованные ( опубликованные, выпущенные в свет, изданные, публично исполненные,
публично показанные), так и на необнародованные произведения, существующие в какой-либо объективной форме:
1) письменной (рукопись, машинопись, нотная запись и т.п.); 2) устной (публичное произнесение, публичное исполнение и т.п.); 3) звуко- или видеозаписи (механической, цифровой, магнитной, оптической
и т.п.); 4) изображения (рисунок, эскиз, картина, план, чертеж, кино-, теле-, видео-
или фотокадр и т.п.); 5) объемно-пространственной (скульптура, модель, макет, сооружение и т.п.); 6) иных формах. 3. Часть произведения (включая его название, наименования персонажей),
которая обладает признаками, указанными в пункте 1 настоящей статьи, и может использоваться самостоятельно, является объектом авторского права.
4. Авторское право не распространяется на собственно идеи, концепции, принципы, методы, системы, процессы, открытия, факты.
Сноска. Статья 971 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 972. Виды объектов авторского права
1. Объектами авторского права являются: 1) литературные произведения; 2) драматические и музыкально-драматические произведения; 3) сценарные произведения; 4) произведения хореографии и пантомимы; 5) музыкальные произведения с текстом или без текста; 6) аудио-визуальные произведения;
7) произведения живописи, скульптуры, графики и другие произведения изобразительного искусства;
8) произведения прикладного искусства; 9) произведения архитектуры, градостроительства, дизайна и
садово-паркового искусства; 10) фотографические произведения и произведения, полученные способами,
аналогичными фотографии; 11) карты, планы, эскизы, иллюстрации и трехмерные произведения,
относящиеся к географии, топографии и другим наукам; 12) программы для ЭВМ; 13) иные произведения.
2. Охрана программ для ЭВМ распространяется на все виды программ для ЭВМ (в том числе операционные системы), которые могут быть выражены на любом языке и в любой форме, включая исходный текст и объектный код.
3. К объектам авторского права также относятся: 1) производные произведения (переводы, обработки, аннотации, рефераты,
резюме, обзоры, инсценировки, музыкальные аранжировки и другие переработки произведений науки, литературы и искусства);
2) сборники (энциклопедии, антологии, базы данных) и другие составные произведения, представляющие собой по подбору и (или) расположению материалов результат творческого труда.
Производные и составные произведения охраняются авторским правом независимо от того, являются ли объектами авторского права произведения, на которых они основаны или которые они включают.
Сноска. Статья 972 с изменениями, внесенными законами РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 973. Правовое регулирование авторских отношений
Авторские отношения регулируются настоящим Кодексом и иными законодательными актами об авторском праве и смежных правах, а в случаях, предусмотренных ими, и иными законодательными актами.
Статья 974. Произведения, не являющиеся объектами авторского права
Не являются объектами авторского права: 1) официальные документы (законы, судебные решения, иные тексты
законодательного, административного, судебного и дипломатического характера ), а также их официальные переводы;
2) государственные символы и знаки (флаги, гербы, ордена, денежные знаки и иные государственные символы и знаки);
3) произведения народного творчества; 4) сообщения о событиях и фактах, имеющие информационный характер.
Статья 975. Права на проекты официальных документов, государственных символов и знаков
1. Право авторства на проекты официальных документов, государственных символов и знаков принадлежит лицу, создавшему проекты (разработчику).
Разработчики проектов официальных документов, символов и знаков вправе публиковать такие проекты, если это не запрещено органом, по поручению которого производилась разработка. При публикации проекта разработчики вправе указывать свое имя.
2. Проект может быть использован компетентным органом для подготовки официального документа без согласия разработчика, если этот проект опубликован автором или направлен им соответствующему органу.
При подготовке официальных документов, государственных символов или знаков на основе проекта в него могут вноситься дополнения и изменения по усмотрению органа, осуществляющего подготовку официального документа, государственного символа или знака.
3. После принятия проекта компетентным органом он может использоваться без указания имени разработчика и без выплаты авторского вознаграждения.
Сноска. Статья 975 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 976. Знак охраны авторского права
1. Обладатель исключительного авторского права может для оповещения о своих правах использовать знак охраны авторского права, который помещается на каждом экземпляре произведения и состоит из трех элементов:
1) латинской буквы "С" в окружности; 2) имени (наименования) обладателя исключительных авторских прав; 3) года первого опубликования произведения. 2. Если не доказано иное, обладателем исключительного авторского права
считается лицо, обозначенное в знаке охраны.
Статья 977. Личные неимущественные права автора
1. Автору произведения принадлежат следующие личные неимущественные права:
1) право признаваться автором произведения и требовать такого признания при его использовании, исключающее признание авторства других лиц на это же произведение (право авторства);
2) право использовать произведение под своим именем, под псевдонимом или анонимно (право на авторское имя);
3) право на внесение изменений и дополнений в свое произведение и на защиту произведения, включая его наименование, от внесения кем-либо без
согласия автора изменений и дополнений при издании, публичном исполнении или ином использовании произведения (право на неприкосновенность произведения).
Воспрещается без согласия автора снабжать его произведение при издании иллюстрациями, предисловиями, послесловиями, комментариями или какими бы то ни было пояснениями.
После смерти автора защита неприкосновенности произведения осуществляется лицом, указанным в завещании, а при отсутствии таких указаний - наследниками автора, а также лицами, на которых в соответствии с законодательными актами возложена охрана авторских прав;
4) право на открытие доступа к произведению неопределенному кругу лиц ( право на обнародование), за исключением произведений, созданных в порядке выполнения служебных обязанностей или служебного задания работодателя.
2. Автор имеет право отказаться от ранее принятого решения об обнародовании произведения (право на отзыв) при условии возмещения пользователю причиненных таким решением убытков, включая упущенную выгоду. Если произведение уже было обнародовано, автор обязан публично оповестить о его отзыве. При этом он вправе изъять за свой счет из обращения ранее изготовленные экземпляры произведения.
Положения настоящего пункта не применяются к служебным произведениям. 3. Соглашение автора с кем-либо или заявление автора об отказе от
осуществления личных неимущественных прав ничтожны. Сноска. Статья 977 с изменениями, внесенными законами РК от 12.01.2012 №
537-IV (вводится в действие по истечении 10 календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 978. Имущественные права автора
1. Автору принадлежат исключительные права на использование произведения в любой форме и любым способом.
2. Исключительные права автора на использование произведения означают право осуществлять, разрешать или запрещать осуществление следующих действий:
1) воспроизводить произведение (право на воспроизведение); 2) распространять оригинал или экземпляры произведения любым способом:
продавать, менять, сдавать в прокат (внаем), совершать иные операции, в том
числе в открытой информационно-коммуникационной сети (право на распространение);
3) публично показывать произведение (право на публичный показ); 4) публично исполнять произведение (право на публичное исполнение);
5) публично сообщать произведение для всеобщего сведения, включая сообщение в эфир или по кабелю (право на публичное сообщение);
6) передавать произведение в эфир (транслировать по радио и телевидению), в том числе передавать по кабелю или спутниковой связи (право на сообщение в эфир);
7) переводить произведение (право на перевод); 8) переделывать, аранжировать или другим образом перерабатывать
произведение (право на переработку); 9) практически реализовать градостроительный, архитектурный,
дизайнерский проект; 10) осуществлять иные, не противоречащие законодательным актам, действия
. 3. Исключен Законом РК от 07.04.2015 № 300-V (вводится в действие по
истечении десяти календарных дней после дня его первого официального опубликования).
4. Если экземпляры правомерно опубликованного произведения введены в гражданский оборот посредством их продажи, то допускается их дальнейшее распространение без согласия автора и без выплаты авторского вознаграждения, за исключением случаев, предусмотренных законодательными актами Республики Казахстан.
5. Произведение считается использованным, независимо от того, реализовано оно с целью извлечения дохода либо его реализация не была направлена на это.
6. Практическое применение положений, составляющих содержание произведения (изобретений, иных технических, экономических, организационных и т.п. решений), не составляет использования произведения в смысле авторского права.
Сноска. Статья 978 с изменениями, внесенными законами РК от 22.11.2005 N 90 (порядок введения в действие см. ст. 2 Закона); от 12.01.2012 № 537-IV ( вводится в действие по истечении 10 календарных дней после его первого официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 979. Депонирование произведений
1. Депонирование рукописей произведений, других произведений на материальном носителе, в том числе на машинном, признается использованием произведения, если такое депонирование произведено в открытом для доступа каждого хранилище (депозитарии) и допускает получение по договору с депозитарием экземпляра произведения любым лицом.
2. Депонирование произведения осуществляется на основе договора правообладателя с депозитарием, устанавливающего условия использования произведения. Такой договор и договор депозитария с пользователем являются публичными ( настоящего Кодекса).статья 387
Статья 980. Действие авторского права на территории Республики Казахстан
1. Авторское право на произведение, впервые обнародованное на территории Республики Казахстан либо не обнародованное, но оригинал которого находится на ее территории в какой-либо объективной форме, действует на территории Республики Казахстан. В этом случае авторское право признается за автором и ( или) его наследниками, а также за иными правопреемниками автора, независимо от их гражданства.
2. Авторское право признается также за гражданами Республики Казахстан, произведения которых впервые обнародованы или находятся в какой-либо объективной форме на территории иностранного государства, а равно за их правопреемниками.
3. При предоставлении охраны авторского права обладателю в соответствии с международными договорами факт обнародования произведения на территории иностранного государства определяется согласно положениям соответствующего международного договора.
4. В целях охраны произведения на территории Республики Казахстан автор произведения определяется по законам государства, на территории которого произведение стало впервые охраняться.
Статья 981. Начало действия авторского права
Авторское право на произведение начинает действовать с момента придания произведению объективной формы, доступной для восприятия третьих лиц, независимо от его обнародования. Авторское право на устное произведение действует с момента его сообщения третьим лицам.
Если произведение не подпадает под действие настоящегостатьи 980 Кодекса, авторское право на такое произведение охраняется с момента первого обнародования произведения, если оно осуществлено в Республике Казахстан.
Статья 982. Срок действия авторского права
1. Авторское право действует в течение всей жизни автора и семидесяти лет после его смерти, считая с первого января года, следующего за годом смерти автора.
2. Авторское право на произведение, созданное в соавторстве, действует в течение всей жизни соавторов и семидесяти лет после смерти последнего из авторов, пережившего других соавторов.
3. Авторское право на произведение, впервые выпущенное в свет под псевдонимом или анонимно, действует в течение семидесяти лет, считая с первого января года, следующего за годом выпуска произведения в свет.
Если в течение указанного срока аноним или псевдоним будут раскрыты, то действуют сроки, установленные пунктом 1 настоящей статьи.
4. В течение сроков, указанных в пункте 1 настоящей статьи, авторское право принадлежит наследникам автора и переходит по наследству, принадлежит правопреемникам, получившим право по договору с автором, его наследниками и последующими правопреемниками.
5. Авторское право на произведение, впервые выпущенное в свет в течение тридцати лет после смерти автора, действует в течение семидесяти лет после его выпуска в свет, считая с первого января года, следующего за годом выпуска произведения в свет.
6. Авторство, имя автора и неприкосновенность произведения охраняются бессрочно.
Сноска. Статья 982 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст.2 Закона).
Статья 983. Переход произведения в общественное достояние
1. По истечении срока действия авторского права на произведение оно становится общественным достоянием.
2. Произведения, являющиеся общественным достоянием, могут свободно использоваться любым лицом без выплаты авторского вознаграждения. При этом должно соблюдаться право авторства, право на авторское имя и право на неприкосновенность произведения.
Сноска. Статья 983 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 984. Управление авторскими правами
1. Правообладатель вправе осуществлять принадлежащие ему права лично, по своему усмотрению. Иные лица могут управлять авторскими правами лишь с согласия правообладателя и в пределах предоставленных им полномочий, за исключением прав, предусмотренных статьей 977 настоящего Кодекса, когда представительство осуществляет законный представитель.
2. В порядке, установленном законодательными актами, обладатели авторских и смежных прав могут создавать организации, на которые возлагается управление авторскими и смежными правами.
Глава 51. Смежные права
Статья 985. Объекты смежных прав
Смежные права распространяются на постановки, исполнения, фонограммы, передачи организаций эфирного и кабельного вещания, независимо от их назначения, содержания и достоинства, а также от способа и формы их выражения.
Статья 986. Субъекты смежных прав
1. Субъектами смежных прав являются исполнители, производители фонограмм и организации эфирного и кабельного вещания.
2. Производитель фонограммы, организации эфирного и кабельного вещания осуществляют права, предусмотренные настоящей главой, в пределах прав, полученных по договору с исполнителем и автором записанного на фонограмме либо передаваемого в эфир или по кабелю произведения.
3. Исполнитель осуществляет права, предусмотренные настоящей главой и в соответствии с законодательством Республики Казахстан, при условии соблюдения прав авторов исполняемого произведения.
4. Для возникновения и осуществления смежных прав не требуется регистрации произведений или соблюдения каких-либо иных формальных требований.
5. Производитель фонограммы и (или) исполнитель для оповещения о своих правах вправе использовать знак охраны смежных прав, который помещается на каждом экземпляре записи исполнения, фонограммы и (или) на каждом содержащем ее футляре и состоит из трех элементов:
1) латинской буквы "Р" в окружности; 2) имени (наименования) обладателя исключительных смежных прав; 3) года первого опубликования записи исполнения, фонограммы.
6. Если не доказано иное, производителем фонограммы признается физическое или юридическое лицо, имя или наименование которого обозначено на фонограмме и (или) содержащем ее футляре.
Сноска. Статья 986 с изменениями, внесенными законами РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 987. Действие смежных прав
1. Право исполнителя на исполнение, впервые имевшее место на территории Республики Казахстан, действует на территории Республики Казахстан. В этом случае право признается за исполнителем и его наследниками, а также за иными правопреемниками исполнителя, независимо от гражданства.
Право исполнителя признается также за ним в случаях, когда исполнение впервые осуществлено на территории иностранного государства, а равно за его правопреемниками.
2. Права производителя фонограммы действуют на территории Республики Казахстан, если эта запись впервые публично воспроизводилась или ее экземпляры публично распространялись в Республике Казахстан.
Права производителя фонограммы признаются также за гражданами Республики Казахстан или юридическими лицами, имеющими место жительства или место нахождения на территории Республики Казахстан.
3. Права организации эфирного или кабельного вещания признаются за ней в случае, если организация имеет официальное местонахождение на территории Республики Казахстан и осуществляет передачи с помощью передатчиков, расположенных на территории Республики Казахстан.
4. Права иных иностранных исполнителей, производителей фонограмм, организаций эфирного или кабельного вещания охраняются на территории Республики Казахстан в соответствии с международными договорами, ратифицированными Республикой Казахстан.
Сноска. Статья 987 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 988. Регулирование прав субъектов смежных прав
Объем и содержание исключительных и иных прав исполнителя, производителя фонограммы, организации эфирного и кабельного вещания, а также случаи и пределы ограничения исключительных прав указанных субъектов и ответственности за их нарушение регулируются законодательными актами.
Сноска. Статья 988 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 989. Срок действия смежных прав
1. Смежные права в отношении исполнителя действуют в течение семидесяти лет после первого исполнения или постановки. Права исполнителя на имя и на защиту исполнения или постановки от искажения охраняются бессрочно.
2. Смежные права в отношении производителя фонограммы действуют в течение семидесяти лет после первого обнародования фонограммы либо в течение семидесяти лет после ее первой записи, если фонограмма не была обнародована в течение этого срока.
3. Смежные права в отношении организации эфирного вещания действуют в течение семидесяти лет после осуществления такой организацией первой передачи в эфир.
4. Смежные права в отношении организации кабельного вещания действуют в течение семидесяти лет после осуществления такой организацией первой передачи по кабелю.
5. Исчисление сроков, предусмотренных пунктами 1-4 настоящей статьи, начинается с первого января года, следующего за годом, в котором имел место юридический факт, являющийся основанием для начала течения срока.
Сноска. Статья 989 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Статья 990. Права исполнителей, производителей фонограмм, организаций эфирного и кабельного вещания, являющихся иностранными гражданами или иностранными юридическими лицами
Права исполнителей, производителей фонограмм, организаций эфирного и кабельного вещания, являющихся иностранными гражданами или иностранными юридическими лицами, если они осуществили первую постановку, исполнение, запись или передачу в эфир вне территории Республики Казахстан, действуют на ее территории в соответствии с международными договорами, ратифицированными Республикой Казахстан.
Сноска. Статья 990 с изменениями, внесенными Законом РК от 22.11.2005 № 90 (порядок введения в действие см. ст. 2).
Глава 52. Право на изобретение, полезную модель, промышленный образец
Статья 991. Условия правовой охраны изобретения, полезной модели, промышленного образца
1. Права на изобретение, полезную модель и промышленный образец охраняются патентом.
2. Изобретением, которому предоставляется правовая охрана, признается техническое решение, являющееся новым, имеющее изобретательский уровень и промышленно применимое.
3. Полезной моделью, которой предоставляется правовая охрана, признается техническое решение, являющееся новым и промышленно применимым.
4. Промышленным образцом, которому предоставляется правовая охрана, признается художественно-конструкторское решение изделия, определяющее его внешний вид и являющееся новым, оригинальным.
5. Требования, предъявляемые к условиям патентоспособности изобретения, полезной модели, промышленного образца, при которых возникает право на получение патента, определяются Законом Республики Казахстан "Патентный закон Республики Казахстан".
6. Перечень непатентоспособных технических решений, художественно-конструкторских решений изделий определяется законодательными актами.
Сноска. Статья 991 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 12.01.2012 № 537-IV (вводится в действие по истечении 10 календарных дней после его первого официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 992. Право использования изобретения, полезной модели, промышленного образца
1. Патентообладателю принадлежит исключительное право использования защищенного патентом изобретения, полезной модели, промышленного образца по своему усмотрению, включая право производить продукт с применением защищенных решений, применять защищенные патентом технологические процессы в собственном производстве, продавать или предлагать к продаже изделия, содержащие защищенные решения, импортировать соответствующие изделия.
2. Другие лица не вправе использовать изобретение, полезную модель, промышленный образец без разрешения патентообладателя, за исключением случаев, когда такое использование в соответствии с настоящим Кодексом или другими законодательными актами не является нарушением прав патентообладателя.
3. Нарушением исключительного права патентообладателя признается несанкционированное изготовление, применение, импорт, предложение к продаже, продажа, иное введение в гражданский оборот или хранение с этой целью изделия, изготовленного с применением запатентованного изобретения, полезной модели или промышленного образца, а также применение способа, охраняемого патентом на изобретение, или введение в гражданский оборот либо хранение с этой целью изделия, изготовленного непосредственно способом, охраняемым патентом на изобретение.
Изделие считается изготовленным запатентованным способом, пока не доказано иное.
Сноска. Статья 992 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 993. Распоряжение правом на патент
Сноска. Заголовок статьи 993 с изменениями, внесенными Законом РК от 07.04.2015 (вводится в действие по истечении десяти календарных дней№ 300-V после дня его первого официального опубликования).
Право на получение патента, права, вытекающие из регистрации заявки, право на владение патентом и права, вытекающие из патента, могут быть переданы полностью или частично другому лицу.
Сноска. Статья 993 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 994. Право авторства
1. Автору изобретения, полезной модели, промышленного образца принадлежит право авторства.
2. Право авторства и другие личные права на изобретение, полезную модель, промышленный образец возникают с момента возникновения прав, основанных на охранном документе.
3. За автором изобретения, полезной модели, промышленного образца законодательные акты могут закреплять специальные права, льготы и преимущества социального характера.
4. Лицо, указанное в заявке в качестве автора, считается автором, пока не доказано иное. В качестве доказательств могут привлекаться лишь факты и обстоятельства, существовавшие до возникновения права.
Сноска. Статья 994 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 995. Соавторы изобретения, полезной модели, промышленного образца
1. Взаимоотношения соавторов изобретения, полезной модели, промышленного образца определяются соглашением между ними.
2. Нетворческое содействие созданию изобретения, полезной модели, промышленного образца (техническая, организационная или иная помощь, содействие оформлению прав и т.п.) не влечет за собой соавторства.
Статья 996. Служебные изобретения, полезные модели, промышленные образцы
Право на патент на изобретение, полезную модель, промышленный образец, созданные работником при выполнении им своих служебных обязанностей или конкретного задания работодателя (служебные изобретения, полезные модели, промышленные образцы), принадлежит работодателю, если иное не предусмотрено в договоре между ними.
Сноска. Статья 996 в редакции Закона РК от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 997. Право автора на вознаграждение за служебные изобретение, полезную модель, промышленный образец
Размер, условия и порядок выплаты вознаграждения автору за служебные изобретение, полезную модель, промышленный образец определяются соглашением между ним и работодателем. Если невозможно соразмерить вклад
автора и работодателя в создание служебного изобретения, полезной модели или промышленного образца, размер, условия и порядок выплаты вознаграждения автору определяются законодательными актами Республики Казахстан.
Сноска. Статья 997 в редакции Закона РК от 31.10.2015 № 382-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 998. Действие патента на территории Республики Казахстан
Сноска. Заголовок статьи 998 с изменениями, внесенными Законом РК от 07.04.2015 (вводится в действие по истечении десяти календарных дней№ 300-V после дня его первого официального опубликования).
1. На территории Республики Казахстан действуют патенты на изобретение, полезную модель и промышленный образец, выданные экспертной организацией .
2. Патенты, выданные в иностранном государстве или международной организацией, действуют на территории Республики Казахстан в случаях, предусмотренных международными договорами Республики Казахстан.
3. Иностранцы и иностранные юридические лица или их правопреемники имеют право на получение в Республике Казахстан патента на изобретение, полезную модель и промышленный образец, если заявленное в установленном порядке решение отвечает требованиям, предъявляемым законодательными актами Республики Казахстан соответственно к изобретениям, полезным моделям или промышленным образцам.
Сноска. Статья 998 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 999. Срок действия патента
1. Патент действует с даты подачи заявки в экспертную организацию и сохраняет силу при условии соблюдения требований, установленных законами Республики Казахстан:
1) патент на изобретение – в течение двадцати лет. В отношении изобретения, относящегося к лекарственному средству,
пестициду (ядохимикату), для применения которых требуется получение разрешений в порядке, установленном законодательством Республики Казахстан
о разрешениях и уведомлениях, срок действия исключительного права и удостоверяющего это право патента может быть продлен по ходатайству патентообладателя, но не более чем на пять лет.
Указанный срок продлевается на время, прошедшее со дня подачи заявки на выдачу патента на изобретение до дня получения первого разрешения на применение изобретения за вычетом пяти лет;
2) патент на полезную модель – в течение пяти лет. Срок действия патента может быть продлен экспертной организацией по ходатайству патентообладателя , но не более чем на три года;
3) патент на промышленный образец – в течение пятнадцати лет. Срок действия патента может быть продлен экспертной организацией по ходатайству патентообладателя, но не более чем на пять лет.
2. Охрана изобретения, полезной модели, промышленного образца действует с даты подачи заявки в экспертную организацию. Защита прав может быть осуществлена после выдачи патента. В случае отказа в выдаче патента охрана считается ненаступившей.
3. Приоритет изобретения, полезной модели, промышленного образца определяется в порядке, предусмотренном законами Республики Казахстан.
4. По истечении срока действия, а также в случае досрочного прекращения действия исключительного права изобретение, полезная модель или промышленный образец переходят в общественное достояние.
5. Изобретение, полезная модель или промышленный образец, перешедшие в общественное достояние, могут свободно использоваться любым лицом без чьего-либо согласия или разрешения и без выплаты вознаграждения за использование.
Сноска. Статья 999 в редакции Закона РК от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); с изменениями, внесенными Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1000. Передача исключительного права на изобретение, полезную модель, промышленный образец
Договор о передаче исключительного права на изобретение, полезную модель , промышленный образец заключается в письменной форме. Передача исключительного права подлежит регистрации в порядке, определяемом уполномоченным государственным органом.
Несоблюдение письменной формы и (или) требования о регистрации влечет ничтожность договора.
Аннулирование регистрации осуществляется в соответствии с Законом Республики Казахстан "Патентный закон Республики Казахстан".
Сноска. Статья 1000 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1001. Предоставление права на использование изобретения, полезной модели, промышленного образца
Сноска. Заголовок статьи 1001 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
1. Лицензионный, сублицензионный договоры на использование изобретения, полезной модели, промышленного образца заключаются в письменной форме. Предоставление права на использование изобретения, полезной модели, промышленного образца подлежит регистрации в порядке, определяемом уполномоченным государственным органом.
Несоблюдение письменной формы и (или) требования о регистрации влечет ничтожность договора.
Аннулирование регистрации осуществляется в соответствии с Законом Республики Казахстан "Патентный закон Республики Казахстан".
2. Содержание лицензионного договора должно соответствовать требованиям , изложенным в настоящего Кодекса.статье 966
Сноска. Статья 1001 с изменениями, внесенными законами РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования); от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1002. Открытая лицензия
1. Патентообладатель может подать в экспертную организацию заявление о предоставлении любому лицу права на получение лицензии на использование изобретения, полезной модели, промышленного образца (открытая лицензия).
2. Лицо, изъявившее желание воспользоваться открытой лицензией, обязано заключить с патентообладателем договор о платежах. Споры об условиях такого договора разрешаются судом.
Заявление патентообладателя о предоставлении права на открытую лицензию не подлежит отзыву.
Сноска. Статья 1002 с изменением, внесенным Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1003. Ответственность за нарушение патента
Сноска. Заголовок статьи 1003 с изменениями, внесенными Законом РК от 07.04.2015 (вводится в действие по истечении десяти календарных дней№ 300-V после дня его первого официального опубликования).
По требованию патентообладателя нарушение патента должно быть прекращено, а нарушитель обязан возместить патентообладателю понесенные им убытки (статья 9 настоящего Кодекса). Вместо понесенных убытков патентообладатель вправе взыскать с нарушителя доходы, полученные им вследствие неправомерного использования изобретения, полезной модели, промышленного образца.
Сноска. Статья 1003 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1004. Право преждепользования
1. Любое лицо, которое до даты приоритета изобретения, полезной модели, промышленного образца добросовестно использовало на территории Республики Казахстан созданное независимо от автора тождественное решение или сделало необходимые к этому приготовления, сохраняет право на дальнейшее его безвозмездное использование без расширения объема использования.
2. Лицо, добросовестно начавшее использование изобретения, полезной модели, промышленного образца после даты приоритета, но до даты официальной публикации сведений о выдаче патента на изобретение, полезную модель, промышленный образец, обязано по требованию патентообладателя прекратить дальнейшее использование. Однако такое лицо не обязано возмещать патентообладателю убытки, понесенные им в результате такого использования.
Сноска. Статья 1004 с изменениями, внесенными законами РК от 02.03.2007 N 237 (вводится в действие со дня его официального опубликования); от 07.04.2015 № 300-V (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1005. Ограничение прав патентообладателя
Основания ограничения прав патентообладателя, условия прекращения ( аннулирования) патента, признания его недействительным, прекращения его действия, выдачи принудительных лицензий и принудительного отчуждения патентов устанавливаются законодательными актами.
Глава 53. Права на селекционные достижения
Статья 1006. Условия охраны прав на новые сорта растений и новые породы животных
1. Права на новые сорта растений и новые породы животных (селекционные достижения) охраняются при условии выдачи патента. Патент удостоверяет исключительное право патентообладателя на использование селекционного достижения, его приоритет и авторство селекционера.
Селекционным достижением в растениеводстве признается сорт растения, полученный искусственным путем или путем отбора и имеющий один или несколько хозяйственных признаков, которые отличают его от существующих сортов растений.
Селекционным достижением в животноводстве признается порода, то есть целостная многочисленная группа животных общего происхождения, созданная человеком и имеющая генеалогическую структуру и свойства, которые позволяют отличить ее от иных пород животных этого же вида и количественно достаточны для размножения в качестве одной породы.
2. Условия правовой охраны селекционных достижений, порядок оформления и выдачи патента на сорта растений и породы животных устанавливаются законодательными актами.
3. К отношениям, связанным с правами на селекционные достижения и охраной этих прав соответственно применяются правила - , -статей 992 998 1000
настоящего Кодекса, если правилами настоящей главы и законодательными1004 актами об охране селекционных достижений не предусмотрено иное.
Сноска. В статью 1006 внесены изменения - Законом РК от 22 ноября 2005 года N 90 (порядок введения в действие см. ст.2 Закона).
Статья 1007. Право автора определять наименование селекционного достижения
1. Автор селекционного достижения вправе определить его наименование, которое должно отвечать требованиям, установленным законодательством.
2. При производстве, воспроизводстве, предложении к продаже, продаже и иных видах сбыта охраняемых селекционных достижений применение зарегистрированных для них наименований обязательно. Присвоение произведенным и (или) продаваемым семенам, племенному материалу наименования, отличающегося от зарегистрированного, не допускается.
3. Присвоение наименования зарегистрированного селекционного достижения не относящимся к ним произведенным и (или) продаваемым семенам и племенному материалу является нарушением прав патентообладателя и селекционера.
Статья 1008. Права автора селекционного достижения на вознаграждение
1. Автор селекционного достижения, не являющийся патентообладателем, имеет право на получение вознаграждения от патентообладателя за использование селекционного достижения в течение срока действия патента.
2. Размер и условия выплаты вознаграждения автору селекционного достижения определяются договором, заключенным между ним и патентообладателем. При этом размер вознаграждения не должен составлять менее пяти процентов от сумм ежегодных поступлений, получаемых патентообладателем за использование селекционного достижения, включая поступления от продажи лицензии.
Вознаграждение выплачивается автору в течение шести месяцев после истечения каждого года, в котором использовалось селекционное достижение, если договором автора с патентообладателем не предусмотрено иное.
Статья 1009. Права обладателя патента на селекционное достижение
Обладателю патента на селекционное достижение принадлежит исключительное право на использование этого достижения в пределах, установленных законодательными актами об охране селекционных достижений.
Статья 1010. Обязанности патентообладателя
Обладатель патента на селекционное достижение обязан: 1) вводить в оборот сорт, породу, допущенные к использованию в
производстве; 2) поддерживать соответствующий сорт растения или соответствующую
породу животных в течение срока действия патента таким образом, чтобы сохранялись признаки, указанные в официальном описании сорта или породы, установленном экспертным органом.
Статья 1011. Срок действия патента на селекционное достижение
Действие патента на селекционное достижение начинается со дня подачи заявки в экспертную организацию и продолжается в течение двадцати пяти лет.
Законом Республики Казахстан "Об охране селекционных достижений" могут быть установлены более длительные сроки действия патента для отдельных видов селекционных достижений, а также возможность их продления.
Сноска. Статья 1011 с изменениями, внесенными Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1012. Допуск селекционных достижений к использованию
К использованию допускаются селекционные достижения, которым предоставлена правовая охрана (имеется патент).
Сноска. Статья 1012 в редакции Закона РК от 27.11.2015 № 424-V (вводится в действие по истечении шести месяцев после дня его первого официального опубликования).
Глава 54. Права на топологии интегральных микросхем
Статья 1013. Условия охраны прав на топологии интегральных микросхем
1. Предусмотренная настоящей главой и иными законодательными актами правовая охрана распространяется только на оригинальные топологии интегральных микросхем.
Оригинальной топологией интегральной микросхемы признается созданное в результате творческой деятельности автора, зафиксированное на материальном носителе пространственно-геометрическое расположение совокупности элементов интегральной микросхемы и связей между ними.
2. Правовая охрана, предоставляемая статьями настоящего раздела, не распространяется на идеи, способы, системы, технологию или закодированную информацию, которые могут быть воплощены в топологии.
3. К отношениям, связанным с правом на топологии интегральных микросхем и охраной этих прав, соответственно применяются правила -статей 994 997 настоящего Кодекса.
Статья 1014. Исключительное право на топологии интегральных микросхем
1. Автору или иному правообладателю топологии интегральной микросхемы принадлежит исключительное право использовать эту топологию по своему усмотрению, в частности, путем изготовления интегральной микросхемы с такой топологией, включая право запрещать использование такой топологии другим лицам без соответствующего разрешения.
2. Порядок пользования правами, принадлежащими нескольким авторам топологии или иным правообладателям, определяется договором между ними.
3. Нарушением исключительного права является совершение без разрешения автора следующих действий:
1) копирование топологии в целом или ее части путем включения в интегральную микросхему или иным образом, за исключением той ее части, которая не является оригинальной;
2) применение, ввоз, предложение к продаже, продажа и иное введение в оборот топологии или интегральной микросхемы с этой топологией.
4. Законодательными актами устанавливается перечень действий, не являющихся нарушением исключительных прав обладателя прав на топологию.
Статья 1015. Регистрация топологий
1. Автор топологии интегральной микросхемы или иной правообладатель вправе зарегистрировать топологию путем подачи заявки на регистрацию в экспертную организацию.
2. Подача заявки на регистрацию может быть осуществлена в срок, не превышающий двух лет с даты первого использования топологии, если оно имело место.
3. Порядок регистрации топологий, а также договоров о полной или частичной уступке прав на них устанавливается законодательными актами.
Сноска. Статья 1015 с изменением, внесенным Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1016. Срок действия исключительного права на использование топологии
1. Исключительное право на использование топологии действует в течение десяти лет, начиная с даты регистрации топологии.
Если регистрация топологии не производилась, указанный десятилетний срок исчисляется с документально подтвержденной даты первого использования в любой стране мира этой топологии или интегральной схемы с этой топологией.
2. Появление идентичной оригинальной, независимо созданной другим автором топологии не прерывает и не прекращает течения срока исключительных прав, указанного в пункте 1 настоящей статьи.
Глава 55. Право на защиту нераскрытой информации от незаконного использования
Статья 1017. Условия правовой охраны нераскрытой информации
1. Лицо, правомерно обладающее технической, организационной или коммерческой информацией, в том числе секретами производства (ноу-хау), неизвестной третьим лицам (нераскрытая информация), имеет право на защиту этой информации от незаконного использования, если соблюдены условия, установленные пунктом 1 настоящего Кодекса.статьи 126
2. Право на защиту нераскрытой информации от незаконного использования возникает независимо от выполнения в отношении этой информации каких-либо формальностей (ее регистрации, получения свидетельств и т.п.).
3. Правила о защите нераскрытой информации не применяются в отношении сведений, которые в соответствии с законодательными актами не могут составлять служебную или коммерческую тайну (сведения о юридических лицах, правах на имущество и сделках с ним; сведения, подлежащие представлению в статистической форме и другие).
4. Право на защиту нераскрытой информации действует до тех пор, пока сохраняются условия, предусмотренные пунктом 1 настоящегостатьи 126 Кодекса.
Сноска. Статья 1017 с изменением, внесенным Законом РК от 19.03.2010 № 258-IV.
Статья 1018. Ответственность за незаконное использование нераскрытой информации
1. Лицо, без законных оснований получившее или распространившее нераскрытую информацию либо использующее ее, обязано возместить тому, кто правомерно обладает этой информацией, убытки, причиненные ее незаконным использованием.
2. Если лицо, незаконно использующее нераскрытую информацию, получило ее от лица, которое не имело право ее распространять, о чем приобретатель информации не знал и не должен был знать (добросовестный приобретатель), правомерный обладатель нераскрытой информации вправе потребовать от него возмещения убытков, причиненных использованием нераскрытой информации
после того, как добросовестный приобретатель узнал, что ее использование незаконно.
3. Лицо, правомерно обладающее нераскрытой информацией, вправе потребовать от того, кто ее незаконно использует, немедленного прекращения ее использования. Однако суд с учетом средств, израсходованных добросовестным приобретателем нераскрытой информации на ее использование, может разрешить ее дальнейшее использование на условиях возмездной исключительной лицензии.
4. Лицо, самостоятельно и правомерно получившее сведения, составляющие содержание нераскрытой информации, вправе использовать эти сведения, независимо от прав обладателя соответствующей нераскрытой информации, и не отвечает перед ним за такое использование.
Статья 1019. Переход права на защиту нераскрытой информации от незаконного использования
1. Лицо, обладающее нераскрытой информацией, может передать все или часть сведений, составляющих содержание этой информации, другому лицу по лицензионному договору ( настоящего Кодекса).статья 966
2. Лицензиат обязан принимать надлежащие меры к охране конфиденциальности информации, полученной по договору, и имеет те же права на ее защиту от незаконного использования третьими лицами, что и лицензиар. Если в договоре не предусмотрено иное, обязанность сохранять конфиденциальность информации лежит на лицензиате и после прекращения лицензионного договора, если соответствующие сведения продолжают оставаться нераскрытой информацией.
Глава 56. Средства индивидуализации участников гражданского оборота, товаров и услуг Параграф 1. Фирменное наименование
Статья 1020. Право на фирменное наименование
1. Юридическое лицо имеет исключительное право использовать фирменное наименование ( настоящего Кодекса) в официальных бланках, печатныхстатья 38 изданиях, рекламе, вывесках, проспектах, счетах, на интернет-ресурсах, на товарах и их упаковке и в иных случаях, необходимых для индивидуализации юридического лица.
2. Фирменное наименование юридического лица определяется при утверждении его устава. Под определенным фирменным наименованием
юридическое лицо включается в Национальный реестр бизнес-идентификационных номеров.
3. Не может быть использовано фирменное наименование, похожее на фирменное наименование уже зарегистрированного юридического лица настолько, что это может привести к отождествлению соответствующих юридических лиц, а также введению в заблуждение относительно выпускаемых ими товаров или оказываемых услуг.
4. Если фирменное наименование одного юридического лица оказывается тождественным или сходным до степени смешения с товарным знаком (знаком обслуживания) другого физического или юридического лица и в результате такого тождества или сходства может ввести потребителей в заблуждение, то преимущество будет иметь средство индивидуализации (фирменное наименование, товарный знак, знак обслуживания), исключительное право на которое возникло ранее. Обладатель такого средства индивидуализации в порядке, установленном законодательством Республики Казахстан, имеет право требовать признания недействительной правовую охрану, предоставленную товарному знаку (знаку обслуживания) на однородные товары или услуги, или запрета на использование фирменного наименования.
Сноска. Статья 1020 с изменениями, внесенными законами РК от 12.01.2012 № 537-IV(вводится в действие по истечении 10 календарных дней после его первого официального опубликования); от 24.12.2012 № 60-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1021. Использование фирменного наименования юридического лица в товарном знаке
Фирменное наименование юридического лица может быть использовано в принадлежащем ему товарном знаке.
Статья 1022. Действие права на фирменное наименование
1. На территории Республики Казахстан действует исключительное право на фирменное наименование, зарегистрированное в Республике Казахстан в качестве обозначения юридического лица.
На фирменное наименование, зарегистрированное или общепризнанное в иностранном государстве, исключительное право на территории Республики Казахстан действует в случаях, предусмотренных законодательными актами.
2. Действие права на фирменное наименование прекращается с ликвидацией юридического лица и с изменением его фирменного наименования.
Статья 1023. Отчуждение права на фирменное наименование
1. Отчуждение и переход права на фирменное наименование юридического лица не допускаются, кроме случаев реорганизации юридического лица и отчуждения предприятия в целом.
2. Обладатель права на фирменное наименование может разрешить (выдать лицензию) другому лицу использовать свое наименование способами, обусловленными в договоре. При этом в лицензионном договоре должны быть предусмотрены меры, исключающие введение потребителя в заблуждение.
Параграф 2. Товарный знак
Статья 1024. Условия правовой охраны товарного знака
1. Правовая охрана товарного знака предоставляется на основании его регистрации, либо без регистрации на основании международных договоров, участницей которых является Республика Казахстан.
Товарным знаком (знаком обслуживания) признается зарегистрированное либо охраняемое без регистрации в силу международного договора, словесное, изобразительное, объемное или другое обозначение, служащее для отличия товаров или услуг одного лица от однородных товаров и услуг других лиц.
Если товарный знак (знак обслуживания) одного физического или юридического лица оказывается тождественным или сходным до степени смешения с фирменным наименованием другого юридического лица и в результате такого тождества или сходства может ввести потребителей в заблуждение, то применяются положения, предусмотренные пунктом 4 статьи
настоящего Кодекса.1020 2. Обозначения, регистрация которых в качестве товарного знака не
допускается, порядок регистрации товарных знаков, прекращения их действия и признания регистрации недействительной, а также случаи, в которых может быть допущена правовая охрана незарегистрированных товарных знаков, определяются законодательными актами о товарных знаках.
3. Право на товарный знак удостоверяется свидетельством. Сноска. Статья 1024 с изменениями, внесенными законами РК от 12.01.2012
№ 537-IV(вводится в действие по истечении 10 календарных дней после его первого официального опубликования); от 20.06.2018 № 161-VI (вводится в
действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1025. Право пользования товарным знаком
1. Обладатель права на товарный знак имеет исключительное право пользования и распоряжения принадлежащим ему знаком.
Не допускаются ограничения прав владельцев на использование товарного знака требованиями, которые могут нанести ущерб различительной способности товарного знака.
2. Использованием товарного знака считается любое его введение в оборот: изготовление, применение, ввоз, хранение, предложение к продаже, продажа товарного знака или товара, обозначенного этим знаком, использование в вывесках, рекламе, печатной продукции или иной деловой документации.
3. Особенности рекламы товарных знаков и товаров, обозначенных товарными знаками, определяются законами Республики Казахстан.
Сноска. Статья 1025 с изменениями, внесенными законами РК от 19.06.2007 № 264 (порядок введение в действие см. ст.2 Закона); от 20.06.2018 № 161-VI ( вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1026. Правовая охрана товарного знака на территории Республики Казахстан
На территории Республики Казахстан правовая охрана предоставляется товарному знаку, зарегистрированному экспертной организацией или международной организацией в силу международного договора, ратифицированного Республикой Казахстан.
Сноска. Статья 1026 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1027. Срок действия права на товарный знак
1. Приоритет товарного знака устанавливается в соответствии с Законом Республики Казахстан "О товарных знаках, знаках обслуживания и наименованиях мест происхождения товаров" или в силу международного договора, ратифицированного Республикой Казахстан.
2. Право на товарный знак действует в течение десяти лет с момента регистрации заявки.
По заявлению обладателя права на товарный знак, поданному в экспертную организацию в течение последнего года действия товарного знака, может быть зарегистрировано продление срока действия товарного знака на десять лет. Продление может производиться неограниченное число раз.
Сноска. Статья 1027 с изменениями, внесенными Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1028. Последствия неиспользования товарного знака
При неиспользовании товарного знака без уважительной причины непрерывно в течение трех лет его регистрация может быть аннулирована по требованию любого заинтересованного лица.
Заключение лицензионного договора на пользование товарным знаком считается его использованием.
Сноска. Статья 1028 с изменениями, внесенными Законом РК от 12.01.2012 № 537-IV(вводится в действие по истечении 10 календарных дней после его первого официального опубликования).
Статья 1029. Переход права на товарный знак
1. Право на товарный знак в отношении всех товаров и услуг либо их части может быть передано правообладателем другому лицу по договору.
2. Передача права на товарный знак не допускается, если она может явиться причиной введения в заблуждение относительно товара или его изготовителя.
3. Переход права на товарный знак, в том числе его передача по договору или в порядке правопреемства должны быть зарегистрированы в экспертной организации.
Сноска. Статья 1029 с изменениями, внесенными Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1030. Разрешение на использование товарного знака
1. Право на использование товарного знака может быть предоставлено обладателем права на товарный знак другому лицу в отношении зарегистрированных товаров и услуг либо их части по лицензионному договору ( статья 966 настоящего Кодекса).
2. Лицензионный договор, разрешающий лицензиату использование товарного знака, должен содержать условие о том, что качество товаров или
услуг лицензиата будет не ниже качества товаров или услуг лицензиара и что лицензиар имеет право осуществлять контроль за выполнением этого условия.
3. При прекращении действия права на товарный знак действие лицензионного договора прекращается.
4. Переход права на товарный знак к другому лицу не влечет за собой прекращения лицензионного договора.
Сноска. Статья 1030 с изменением, внесенным Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1031. Передача права на товарный знак и предоставление права на использование товарного знака
Договор о передаче права на товарный знак, лицензионный, сублицензионный договоры заключаются в письменной форме. Передача права на товарный знак или предоставление права на использование товарного знака подлежит регистрации в порядке, определяемом уполномоченным государственным органом.
Несоблюдение письменной формы договора и (или) требования о регистрации влечет ничтожность договора.
Аннулирование регистрации осуществляется в соответствии с Законом Республики Казахстан "О товарных знаках, знаках обслуживания и наименованиях мест происхождения товаров".
Сноска. Статья 1031 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1032. Ответственность за нарушение права на товарный знак
1. Лицо, нарушившее право владельца товарного знака, обязано немедленно прекратить нарушение и возместить владельцу товарного знака понесенные им убытки.
2. Споры, связанные с определением правомерности использования товарного знака или обозначения, сходного с ним до степени смешения, или общеизвестного товарного знака, рассматриваются судом в порядке, установленном гражданским процессуальным законодательством Республики Казахстан.
3. Товар и его упаковка, на которых размещены без согласия правообладателя товарный знак или обозначение, сходное с ним до степени смешения, признаются контрафактными. Контрафактные товары и их упаковки, а также
орудие, оборудование или иные средства и материалы, использованные для их изготовления, подлежат изъятию из оборота и уничтожению за счет нарушителя на основании вступившего в законную силу решения суда, за исключением случаев, когда введение в оборот таких товаров необходимо в общественных интересах и не нарушает требований законодательства Республики Казахстан о защите прав потребителей.
4. Правообладатель вправе требовать удаления с контрафактных товаров и их упаковок незаконно размещенного товарного знака или обозначения, сходного с ним до степени смешения, в случаях, указанных в пункте 3 настоящей статьи.
5. Лицо, нарушившее право владельца товарного знака при выполнении работ или оказании услуг, обязано удалить товарный знак или обозначение, сходное с ним до степени смешения, с материалов, которыми сопровождается выполнение работ или оказание услуг, в том числе с документации, рекламы, вывесок.
6. Правообладатель при доказанности факта правонарушения вправе вместо возмещения убытков требовать от нарушителя выплаты компенсации в размере, определяемом судом, исходя из характера нарушения, рыночной стоимости однородных (оригинальных) товаров, на которых товарный знак или обозначение, сходное с ним до степени смешения, размещены с согласия правообладателя.
Сноска. Статья 1032 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Параграф 3. Наименование места происхождения товара
Статья 1033. Условие правовой охраны наименования места происхождения товара
1. Правовая охрана наименования места происхождения товара предоставляется на основании его регистрации, за исключением случаев, предусмотренных в законодательных актах.
Наименованием места происхождения (указанием происхождения) товара признается название страны, населенного пункта, местности или другого географического объекта, используемое для обозначения товара, особые свойства которого исключительно или главным образом определяются характерными для этого географического объекта природными условиями или иными факторами либо сочетанием природных условий и этих факторов.
Наименованием места происхождения товара может быть историческое название географического объекта.
2. Не признается наименованием места происхождения товара и не подлежит регистрации для целей его правовой охраны в соответствии с правилами настоящего параграфа обозначение, хотя и представляющее собой или содержащее название географического объекта, но вошедшее в Республике Казахстан во всеобщее употребление как обозначение товара определенного вида , не связанное с местом его изготовления. Это, однако, не лишает лицо, чьи права нарушены недобросовестным использованием такого наименования, возможности их защиты иными способами, предусмотренными законодательными актами, в том числе, на основании правил о недобросовестной конкуренции.
3. Правовая охрана наименования места происхождения товара предоставляется при условии его регистрации или в силу международного договора, ратифицированного Республикой Казахстан.
Сноска. Статья 1033 с изменением, внесенным Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1034. Право пользования наименованием места происхождения товара
1. Лицо, обладающее правом пользования наименованием места происхождения товара, вправе помещать это наименование на товаре, упаковке, рекламе, проспектах, счетах и использовать его иным образом в связи с введением данного товара в гражданский оборот.
2. Наименование места происхождения товара может быть зарегистрировано несколькими лицами как совместно, так и независимо друг от друга, для обозначения товара, отвечающего требованиям, указанным в пункте 1 статьи
настоящего Кодекса. Право пользования наименованием места1033 происхождения товара принадлежит каждому из таких лиц.
3. Лицо, добросовестно использовавшее географическое обозначение, тождественное или сходное с зарегистрированным наименованием места происхождения товара, не менее чем за шесть месяцев до даты его первой регистрации, сохраняет право на его дальнейшее использование в течение семи лет с даты регистрации указанного наименования места происхождения товара.
4. Отчуждение, иные сделки об уступке права пользования наименованием места происхождения товара и предоставление пользования им на основании лицензии не допускаются.
Сноска. Статья 1034 с изменением, внесенным Законом РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1035. Сфера действия правовой охраны наименования места происхождения товара
1. В Республике Казахстан предоставляется правовая охрана наименований мест происхождения товаров, находящихся на территории республики.
2. Правовая охрана наименования места происхождения товара, находящегося в другом государстве, предоставляется в Республике Казахстан, если это наименование зарегистрировано в стране происхождения товара, а также в Республике Казахстан, в соответствии с настоящим Кодексом.
Статья 1036. Срок действия права пользования наименованием места происхождения товара
Право пользования наименованием места происхождения товара действует в течение десяти лет, считая с даты подачи заявки в экспертную организацию.
Срок действия права пользования наименованием места происхождения товара может быть продлен по заявлению его владельца, поданному в течение последнего года действия, на десять лет при сохранении условий, дающих право пользования наименованием места происхождения товара. Продление возможно неограниченное число раз.
Сноска. Статья 1036 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1037. Ответственность за неправомерное пользование наименованием места происхождения товара
1. Лицо, нарушившее право пользования наименованием места происхождения товара, обязано немедленно прекратить нарушение и возместить владельцу права пользования наименованием места происхождения товара понесенные им убытки.
2. Споры, связанные с определением правомерности использования наименования места происхождения товара или обозначения, сходного с ним до степени смешения, рассматриваются судом в порядке, установленном гражданским процессуальным законодательством Республики Казахстан.
3. Товар и его упаковка, на которых размещены без согласия правообладателя наименование места происхождения товара или обозначение, сходное с ним до степени смешения, признаются контрафактными. Контрафактные товары и их упаковки, а также орудие, оборудование или иные средства и материалы, использованные для их изготовления, подлежат изъятию из оборота и уничтожению за счет нарушителя на основании вступившего в законную силу решения суда, за исключением случаев, когда введение в оборот таких товаров необходимо в общественных интересах и не нарушает требований законодательства Республики Казахстан о защите прав потребителей.
4. Правообладатель вправе требовать удаления с контрафактных товаров и их упаковок незаконно размещенного наименования места происхождения товара или обозначения, сходного с ним до степени смешения, в случаях, указанных в пункте 3 настоящей статьи.
5. Лицо, нарушившее право пользования наименованием места происхождения товара при выполнении работ или оказании услуг, обязано удалить наименование места происхождения товара или обозначение, сходное с ним до степени смешения, с материалов, которыми сопровождается выполнение работ или оказание услуг, в том числе с документации, рекламы, вывесок.
6. Правообладатель при доказанности факта правонарушения вправе вместо возмещения убытков требовать от нарушителя выплаты компенсации в размере, определяемом судом, исходя из характера нарушения, рыночной стоимости однородных (оригинальных) товаров, на которых наименование места происхождения товара или обозначение, сходное с ним до степени смешения, размещено с согласия правообладателя.
Сноска. Статья 1037 в редакции Закона РК от 20.06.2018 № 161-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Раздел 6 Наследственное право Глава 57. Общие положения о наследовании
Статья 1038. Наследование
1. Наследование - это переход имущества умершего гражданина ( наследодателя) к другому лицу (лицам) - наследнику (наследникам).
2. Наследство умершего гражданина переходит к другим лицам на условиях универсального правопреемства как единое целое и в один и тот же момент, если из правил настоящего раздела не вытекает иное.
3. Наследование регулируется настоящим Кодексом, а в случаях, прямо им установленных, и иными законодательными актами.
Статья 1039. Основания наследования
1. Наследование осуществляется по завещанию и (или) по закону. 2. Наследование по закону имеет место, когда завещание отсутствует либо
определяет судьбу не всего наследства, а также в иных случаях, установленных настоящим Кодексом.
Статья 1040. Состав наследства
1. В состав наследства входит принадлежащие наследодателю имущество, а также права и обязанности, существование которых не прекращается с его смертью.
В состав наследства могут также входить права, необходимые для оформления имущественных прав наследодателя, которые не были оформлены при его жизни, в том числе право на их регистрацию.
2. Не входят в состав наследства права и обязанности, неразрывно связанные с личностью наследодателя:
1) права членства в организациях, являющихся юридическими лицами, если иное не установлено законодательными актами или договором;
2) право на возмещение вреда, причиненного жизни или здоровью; 3) права и обязанности, вытекающие из алиментных обязательств; 4) права на пенсионные выплаты, пособия и другие выплаты на основании
трудового законодательства Республики Казахстан и законов Республики Казахстан в сфере социального обеспечения;
5) личные неимущественные права, не связанные с имущественными, за исключением случаев, установленных законодательными актами.
3. Личные неимущественные права и другие нематериальные блага, принадлежавшие наследодателю, могут осуществляться и защищаться наследниками.
Сноска. Статья 1040 с изменениями, внесенными законами РК от 15.05.2007 N 253; от 28.12.2011 № 524-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1041. Наследование имущества, являющегося общей совместной собственностью
1. Смерть участника общей совместной собственности является основанием для определения его доли в собственности и раздела общего имущества либо выдела из него доли умершего участника в порядке, установленном статьей 218 настоящего Кодекса. В этом случае наследство открывается на долю умершего участника в общем имуществе, а при невозможности раздела имущества в натуре - в отношении стоимости доли.
2. Участник общей совместной собственности вправе завещать свою долю в общем имуществе, которая будет определена после его смерти в соответствии с пунктом 1 настоящей статьи.
Статья 1042. Открытие наследства
1. Наследство открывается вследствие смерти гражданина или объявления его умершим.
2. Временем открытия наследства является день смерти наследодателя, а при объявлении его умершим - день вступления в силу судебного решения об объявлении гражданина умершим, если в решении суда не указан иной день.
3. Если в один и тот же день умерли лица, которые вправе были наследовать один после другого, они признаются умершими одновременно и наследование открывается после каждого из них, и к наследованию призываются наследники каждого из них.
Статья 1043. Место открытия наследства
Местом открытия наследства является последнее место жительства наследодателя, а если оно неизвестно - место нахождения имущества или его основной части.
Статья 1044. Наследники
1. Наследниками по завещанию и закону могут быть граждане, находящиеся в живых в момент открытия наследства, а также зачатые при жизни наследодателя и родившиеся живыми после открытия наследства.
2. Наследниками по завещанию могут быть юридические лица, созданные до открытия наследства и существующие ко времени открытия наследства, а также государство.
Статья 1045. Устранение от наследования недостойных наследников
1. Не имеют права наследовать ни по завещанию, ни по закону лица, которые умышленно лишили жизни наследодателя или кого-либо из возможных наследников или совершили покушение на их жизнь. Исключение составляют лица, в отношении которых завещатель составил завещание уже после совершения покушения на его жизнь.
2. Не имеют права наследовать ни по завещанию, ни по закону также лица, которые умышленно препятствовали осуществлению наследодателем последней воли и этим способствовали призванию их самих или близких им лиц к наследованию либо увеличению причитающейся им доли наследства.
3. Не имеют права наследовать по закону родители после детей, в отношении которых они лишены родительских прав и не были восстановлены в этих правах к моменту открытия наследства, а также родители (усыновители) и совершеннолетние дети (усыновленные), уклонявшиеся от выполнения возложенных на них в силу закона обязанностей по содержанию наследодателя.
4. Обстоятельства, служащие основанием для устранения от наследования недостойных наследников, устанавливаются судом.
4-1. Лицо, не имеющее права наследовать или устраненное от наследования на основании настоящей статьи (недостойный наследник), обязано возвратить все имущество, необоснованно полученное им из состава наследства.
При невозможности возврата наследственного имущества недостойный наследник обязан возместить его рыночную стоимость.
5. Правила настоящей статьи применяются также и к завещательному отказу ( настоящего Кодекса).статья 1057
В случае, когда предметом завещательного отказа было выполнение определенной работы для недостойного отказополучателя или оказание ему определенной услуги, последний обязан возместить наследнику, исполнившему завещательный отказ, стоимость выполненной работы или оказанной ему услуги.
6. Правила настоящей статьи распространяются на всех наследников, в том числе и на имеющих право на обязательную долю.
Сноска. Статья 1045 с изменениями, внесенными Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Глава 58. Наследование по завещанию
Статья 1046. Общие положения
1. Завещанием признается волеизъявление гражданина по распоряжению принадлежащим ему имуществом на случай смерти.
1-1. Завещание совершается гражданином, обладающим в момент его совершения дееспособностью в полном объеме.
2. Гражданин может завещать все свое имущество или часть его одному либо нескольким лицам, как входящим, так и не входящим в круг наследников по закону, а также юридическим лицам и государству.
3. Завещание должно быть совершено лично. Совершение завещания через представителя не допускается.
4. Завещатель вправе без объяснения причин лишить наследства одного, нескольких или всех наследников по закону. Лишение наследника по закону наследства не распространяется на его потомков, наследующих по праву представления, если из завещания не вытекает иное.
5. Наследодатель вправе совершить завещание, содержащее распоряжение о любом своем имуществе, в том числе и о том, которое он может приобрести в будущем.
Завещатель может любым образом определять доли наследников в наследстве , распорядиться своим имуществом или какой-либо его частью, составив одно или несколько завещаний, касающихся разного имущества.
6. Наследодатель свободен отменять и изменять составленное завещание в любой момент после его совершения и не обязан указывать причины отмены или изменения.
7. Наследодатель не вправе возложить на лиц, назначенных им наследниками в завещании, обязанность в свою очередь распорядиться определенным образом завещанным им имуществом на случай их смерти.
Сноска. Статья 1046 с изменениями, внесенными Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1047. Завещание с условием
1. Завещатель вправе обусловить получение наследства определенным условием относительно характера поведения наследника.
2. Противоправные условия, включенные в распоряжение о назначении наследника или лишении права наследования, ничтожны.
3. Включенные в завещание условия, которые невыполнимы для наследника по состоянию его здоровья или в силу иных объективных причин, могут быть признаны недействительными по иску наследника.
Сноска. Статья 1047 с изменением, внесенным Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1048. Подназначение наследников
1. Завещатель может на случай, если указанный в завещании наследник умрет до открытия наследства, не примет его либо откажется от него или будет устранен от наследования как недостойный наследник в порядке статьи 1045 настоящего Кодекса, а также на случай невыполнения наследником по завещанию правомерных условий наследодателя, назначить другого наследника ( подназначение наследника).
2. Подназначенным наследником может быть любое лицо, которое в соответствии со настоящего Кодекса может быть наследником.статьей 1044
3. Отказ наследника по завещанию не в пользу подназначенного наследника не допускается.
Статья 1049. Наследование части имущества, оставшейся незавещанной
1. Часть имущества, оставшаяся незавещанной, распределяется между наследниками по закону, призываемыми к наследованию в порядке -статей 1061
настоящего Кодекса.1064 2. В число этих наследников входят и те наследники по закону, которым
другая часть имущества была оставлена по завещанию. Сноска. Статья 1049 с изменениями, внесенными Законом РК от 12.01.2007
№ 225 (вводится в действие со дня его официального опубликования).
Статья 1050. Общие правила о форме завещания
1. Завещание должно быть совершено в письменной форме и нотариально удостоверено с указанием места, даты и времени его составления.
2. Надлежаще оформленными признаются: 1) нотариально удостоверенные завещания; 2) завещания, приравниваемые к нотариально удостоверенным. 3. Завещание должно быть собственноручно подписано завещателем. Если завещатель в силу физических недостатков, болезни или неграмотности
не может собственноручно подписать завещание, оно по его просьбе может быть подписано в присутствии нотариуса или иного лица, удостоверяющего завещание, другим гражданином с указанием причин, в силу которых завещатель не мог подписать завещание собственноручно.
4. В случаях, когда в соответствии с правилами настоящего Кодекса при составлении, подписании или удостоверении завещания должны присутствовать свидетели, не могут быть свидетелями, а также не могут подписывать завещание вместо завещателя:
1) нотариус или иное лицо, удостоверяющее завещание; 2) лицо, в пользу которого составлено завещание или сделан завещательный
отказ, его супруг, его дети, родители, внуки и правнуки, а также наследники завещателя по закону;
3) граждане, не обладающие полной дееспособностью; 4) неграмотные и другие лица, не способные прочитать завещание; 5) лица, имеющие судимость за дачу ложных показаний. Сноска. Статья 1050 с изменением, внесенным Законом РК от 27.02.2017 №
49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1051. Нотариально удостоверенное завещание
1. Нотариально удостоверенное завещание должно быть написано завещателем либо записано нотариусом со слов завещателя в присутствии свидетеля. При записи завещания со слов завещателя нотариусом могут быть использованы общепринятые технические средства (пишущая машинка, персональный компьютер и т.д.).
2. Завещание, записанное нотариусом со слов завещателя, должно быть полностью прочитано завещателем в присутствии нотариуса и свидетеля до подписания завещания.
Если завещатель в силу физических недостатков, болезни или неграмотности не в состоянии лично прочитать завещание, его текст оглашается для него свидетелем в присутствии нотариуса, о чем в завещании делается соответствующая запись с указанием причин, по которым завещатель не смог лично прочитать завещание.
3. Если нотариально удостоверенное завещание составляется в присутствии свидетеля, в завещании должны быть указаны фамилия, имя и постоянное место жительства свидетеля. Такие же сведения должны быть включены в завещание в отношении лица, подписавшего завещание вместо завещателя.
4. По желанию завещателя завещание удостоверяется нотариусом без ознакомления с его содержанием (секретное завещание).
Секретное завещание, под страхом его недействительности, должно быть собственноручно написано и подписано завещателем, в присутствии двух свидетелей и нотариуса заклеено в конверт, на котором свидетели ставят свои подписи. Конверт, подписанный свидетелями, запечатывается в присутствии свидетелей и нотариуса в другой конверт, на котором нотариус учиняет удостоверительную подпись.
4-1. При представлении свидетельства о смерти лица, совершившего секретное завещание, нотариус не позднее чем через десять дней со дня представления свидетельства о смерти вскрывает конверт с завещанием в присутствии не менее чем двух свидетелей и пожелавших при этом присутствовать заинтересованных лиц из числа наследников по закону. После вскрытия конверта текст содержащегося в нем завещания сразу же оглашается нотариусом, после чего нотариус составляет и вместе со свидетелями подписывает протокол, удостоверяющий вскрытие конверта с завещанием и содержащий полный текст завещания. Подлинник завещания хранится у нотариуса. Наследникам выдается нотариально удостоверенная копия протокола.
5. Завещание лиц, проживающих в населенных пунктах, где нет нотариуса, удостоверяются должностным лицом, уполномоченным законодательными актами на совершение нотариальных действий.
Сноска. Статья 1051 с изменением, внесенным Законом РК от 21.01.2019 № 217-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1052. Завещания, приравниваемые к нотариально удостоверенным
1. К нотариально удостоверенным завещаниям приравниваются: 1) завещания граждан, находящихся на излечении в больницах, санаториях
иных лечебно-профилактических учреждениях, а также проживающих в домах для престарелых и инвалидов, удостоверенные главными врачами и дежурными врачами этих больниц, санаториев, иных лечебно-профилактических учреждений , а также директорами, главными врачами домов для престарелых и инвалидов;
2) завещания военнослужащих и других лиц, находящихся на излечении в госпиталях, санаториях и других военно-лечебных учреждениях, удостоверенные начальниками, их заместителями по медицинской части, старшими и дежурными врачами этих госпиталей, санаториев и других военно-лечебных учреждений;
3) завещания граждан, находящихся во время плавания на морских судах или судах внутреннего плавания, плавающих под флагом Республики Казахстан, удостоверенные капитанами этих судов;
4) завещания граждан, находящихся в разведочных и других экспедициях, удостоверенные начальниками этих экспедиций;
5) завещания военнослужащих, а в пунктах дислокации воинских частей, соединений, учреждений, военно-учебных заведений, где нет нотариусов и должностных лиц, уполномоченных на совершение нотариальных действий, а
также завещания работающих в этих частях гражданских лиц, членов их семей и членов семей военнослужащих, удостоверенные командирами (начальниками) воинских частей, соединений, учреждений и заведений;
6) завещания лиц, находящихся в местах лишения свободы, удостоверенные начальниками мест лишения свободы.
2. Завещания, предусмотренные в пункте 1 настоящей статьи, должны быть подписаны завещателем в присутствии свидетеля, который также подписывает завещание.
Должностные лица, перечисленные в пункте 1 настоящей статьи, обязаны передать один экземпляр удостоверенного завещания на хранение нотариусу в соответствии с законодательством о нотариате.
В остальном к таким завещаниям соответственно применяются правила настоящего Кодекса, за исключением требования о нотариальномстатьи 1051
удостоверении завещания.
Статья 1053. Отмена и изменение завещания
1. Завещатель вправе в любое время отменить или изменить сделанное им завещание.
2. Завещание может быть отменено путем: 1) подачи в нотариальную контору заявления об отмене полностью ранее
сделанного им завещания; 2) составления нового завещания. 3. Завещание может быть изменено путем: 1) подачи в нотариальную контору заявления об изменении в определенной
части ранее сделанного им завещания; 2) составления нового завещания, изменяющего ранее сделанное завещание в
части. 4. Ранее сделанное завещание, отмененное полностью или частично
последующим завещанием, не восстанавливается, если последнее будет в свою очередь отменено или изменено завещателем.
Статья 1054. Тайна завещания
Нотариус, другое лицо, удостоверяющее завещание, свидетели, а также гражданин, подписывающий завещание вместо завещателя, не вправе до открытия наследства разглашать сведения, касающиеся содержания завещания, его составления, отмены или изменения.
Статья 1055. Толкование завещания
При толковании завещания нотариусом, исполнителем завещания или судом принимается во внимание буквальное значение содержащихся в нем слов и выражений. При неясности буквального смысла какого-либо положения завещания он устанавливается путем сопоставления этого положения с другими положениями и смыслом завещания в целом.
Статья 1056. Недействительность завещания
1. Завещание, совершенное в ненадлежащей форме, ничтожно. Недействительность завещания основывается на правилах главы 4 настоящего Кодекса о недействительности сделок.
2. Завещание может быть признано недействительным по иску лица, для которого признание завещания недействительным имеет имущественные последствия, вследствие нарушения установленного настоящим Кодексом порядка составления, подписания и удостоверения завещания.
Не могут служить основанием недействительности завещания описки и другие незначительные нарушения технического характера, допущенные при его составлении, подписании или удостоверении, если судом установлено, что они не влияют на понимание волеизъявления завещателя.
3. Недействительность отдельных содержащихся в завещании распоряжений не затрагивает действительности остальной части завещания.
4. В случае признания завещания недействительным наследник, который по этому завещанию был лишен наследства, получает право наследовать по закону в порядке, установленном настоящего Кодекса.статьей 1060
Сноска. Статья 1056 с изменениями, внесенными законами РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1057. Завещательный отказ (легат)
1. Завещатель вправе возложить на наследника по завещанию исполнение за счет наследства какого-либо обязательства (завещательный отказ) в пользу одного или нескольких лиц (отказополучателей), которые приобретают право требовать исполнения завещательного отказа.
Отказополучателями (легатариями) могут быть лица как входящие, так и не входящие в число наследников по закону.
2. Предметом завещательного отказа может быть передача отказополучателю в собственность, в пользование или на ином вещном праве вещи, входящей в
состав наследства, приобретение и передача ему имущества, не входящего в состав наследства, выполнение для него определенной работы, оказание ему определенной услуги и т.п.
3. Наследник, на которого завещателем возложен завещательный отказ, должен исполнить его лишь в пределах действительной стоимости перешедшего к нему наследства и за вычетом падающей на него части долгов наследодателя.
Если наследник, на которого возложен завещательный отказ, имеет право на обязательную долю в наследстве, его обязанность исполнить отказ ограничивается стоимостью перешедшего к нему наследства, превышающей стоимость его обязательной доли.
Если завещательный отказ возложен на всех или нескольких наследников, он обременяет каждого из них соразмерно доле в наследстве, если завещанием не предусмотрено иное.
4. На наследника, к которому переходит жилой дом или жилое помещение, завещатель вправе возложить обязательство предоставить другому лицу пожизненное пользование жилым помещением или определенной его частью. При последующем переходе права собственности на жилое помещение право пожизненного пользования сохраняет силу.
Право пожизненного пользования неотчуждаемо, непередаваемо и не переходит к наследникам отказополучателя.
Право пожизненного пользования, предоставленное отказополучателю, не является основанием для проживания членов его семьи, если в завещании не указано иное.
5. В случае смерти наследника, на которого был возложен завещательный отказ, или в случае непринятия им наследства исполнение завещательного отказа переходит к другим наследникам, получившим его долю, либо к государству, если имущество стало выморочным.
Завещательный отказ не исполняется в случае смерти отказополучателя до открытия наследства или после открытия, но до того момента, когда наследник по завещанию успел принять его.
6. Отказополучатель не отвечает за долги наследодателя.
Статья 1058. Возложение
1. Завещатель может возложить на наследника по завещанию обязанность совершить какое-либо действие или воздержаться от него, не предоставляя никому права требовать в качестве кредитора исполнения этой обязанности. Для
осуществления общеполезной цели такая же обязанность может быть возложена на исполнителя завещания при выделении наследодателем части имущества для исполнения возложения.
2. К возложению, предметом которого являются действия, имеющие имущественный характер, соответственно применяются правила статьи 1057 настоящего Кодекса.
3. Обязанность исполнить возложение прекращается в случае, если по обстоятельствам, предусмотренным настоящим Кодексом, доля наследства, причитавшаяся или принадлежавшая наследнику, на котором лежала обязанность исполнить возложение, переходит к другим наследникам.
Сноска. Статья 1058 с изменением, внесенным Законом РК от 27.04.2012 № 15-V (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 1059. Исполнение завещания
1. Завещатель может поручить исполнение завещания указанному им в завещании лицу, не являющемуся наследником (исполнителю завещания, душеприказчику). Согласие этого лица быть исполнителем завещания должно быть выражено им либо в его собственноручной надписи на самом завещании, либо в заявлении, приложенном к завещанию.
Если в завещании исполнитель его не указан, наследники по соглашению между собой вправе поручить исполнение завещания одному из наследников либо другому лицу. При недостижении такого соглашения исполнитель завещания может быть назначен судом по требованию одного или нескольких наследников.
Исполнитель завещания имеет право в любое время отказаться от исполнения возложенных на него завещателем обязанностей, заранее известив об этом наследников по завещанию. Освобождение исполнителя завещания от его обязанностей возможно также по решению суда по заявлению наследников.
2. Исполнитель завещания должен: 1) осуществлять охрану наследства и управление им;
2) принять все возможные меры, чтобы известить всех наследников и отказополучателей об открытии наследства в их пользу;
3) получить причитавшиеся наследодателю денежные суммы; 4) выдать наследникам причитающееся им имущество в соответствии с волей
наследодателя и законодательными актами; 5) обеспечить исполнение наследниками возложенных на них завещательных
отказов ( настоящего Кодекса);статья 1057
6) исполнить завещательные возложения либо требовать от наследников по завещанию исполнения завещательного возложения ( настоящегостатья 1058 Кодекса);
7) произвести очистку наследства от долгов. 3. Исполнитель завещания вправе вступать от своего имени в судебные и
другие дела, связанные с управлением наследством и исполнением завещания, а также может привлекаться к участию в таких делах.
4. Исполнитель завещания осуществляет свои функции в течение срока, разумно необходимого для очистки наследства от долгов, взыскания причитавшихся наследодателю сумм и вступления всех наследников во владение наследством.
5. Исполнитель завещания имеет право на возмещение за счет наследства необходимых расходов по управлению наследством и исполнению завещания. В завещании может быть предусмотрена выплата вознаграждения исполнителю завещания за счет наследства.
6. По исполнении завещания исполнитель завещания обязан предоставить наследникам по их требованию отчет.
Глава 59. Наследование по закону
Статья 1060. Общие положения
1. Наследники по закону призываются к наследованию в порядке очередности , предусмотренной - настоящего Кодекса.статьями 1061 1064
2. При наследовании по закону усыновленный и его потомство, с одной стороны, и усыновитель и его родственники, с другой, приравниваются к кровным родственникам.
Усыновленные и их потомство не наследуют по закону после смерти кровных родителей усыновленного, других его кровных родственников.
Родители усыновленного и другие его кровные родственники не наследуют по закону после смерти усыновленного и его потомства.
3. Каждая последующая очередь наследников по закону получает право на наследование в случае отсутствия наследников предыдущей очереди, устранения их от наследства, непринятия ими наследства либо отказа от него, кроме случаев, указанных в пункте 5 настоящего Кодекса.статьи 1074
4. Правила настоящего Кодекса об очередности призвания наследников по закону к наследованию и о размере их долей в наследстве могут быть изменены нотариально удостоверенным соглашением заинтересованных наследников, заключенным после открытия наследства. Такое соглашение не должно
затрагивать прав не участвующих в нем наследников, а также наследников, имеющих право на обязательную долю.
Сноска. Статья 1060 с изменениями, внесенными Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1061. Первая очередь наследников по закону
1. В первую очередь право на наследование по закону получают в равных долях дети наследодателя, в том числе родившиеся живыми после его смерти, а также супруг (супруга) и родители наследодателя.
2. Внуки наследодателя и их потомки наследуют по праву представления. Сноска. Статья 1061 в редакции Закона РК от 12.01.2007 № 225 (вводится в
действие со дня его официального опубликования).
Статья 1062. Вторая очередь наследников по закону
1. Если нет наследников первой очереди, право на наследование по закону во вторую очередь получают в равных долях полнородные и неполнородные братья и сестры наследодателя, а также его дедушка и бабушка как со стороны отца, так и со стороны матери.
2. Дети полнородных и неполнородных братьев и сестер наследодателя ( племянники и племянницы наследодателя) наследуют по праву представления.
Сноска. Статья 1062 в редакции Закона РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1063. Третья очередь наследников по закону
1. Если нет наследников первой и второй очереди, право на наследование по закону в третью очередь получают в равных долях родные дяди и тети наследодателя.
2. Двоюродные братья и сестры наследодателя наследуют по праву представления.
Сноска. Статья 1063 в редакции Закона РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1064. Наследники последующих очередей
1. Если нет наследников первой, второй и третьей очереди, право наследовать по закону получают родственники наследодателя третьей, четвертой и пятой степени родства, не относящиеся к наследникам предшествующих очередей.
Степень родства определяется числом рождений, отделяющих родственников одного от другого. Рождение самого наследодателя в это число не входит.
2. В соответствии с пунктом 1 настоящей статьи призываются к наследованию:
в качестве наследников четвертой очереди родственники третьей степени родства - прадедушки и прабабушки наследодателя;
в качестве наследников пятой очереди родственники четвертой степени родства - дети родных племянников и племянниц наследодателя (двоюродные внуки и внучки) и родные братья и сестры его дедушек и бабушек (двоюродные дедушки и бабушки);
в качестве наследников шестой очереди родственники пятой степени родства - дети двоюродных внуков и внучек наследодателя (двоюродные правнуки и правнучки), дети его двоюродных братьев и сестер (двоюродные племянники и племянницы) и дети его двоюродных дедушек и бабушек (двоюродные дяди и тети).
3. Если нет наследников предшествующих очередей, к наследованию в качестве наследников седьмой очереди по закону призываются сводные братья и сестры, пасынки, падчерицы, отчим и мачеха наследодателя, если они совместно проживали с наследодателем одной семьей не менее десяти лет.
Сноска. Статья 1064 в редакции Закона РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1065. Пятая очередь наследников по закону
(Статья исключена Законом РК от 12.01.2007 (вводится в действие со№ 225 дня его официального опубликования).
Статья 1066. Шестая очередь наследников по закону
(Статья исключена Законом РК от 12.01.2007 (вводится в действие со№ 225 дня его официального опубликования).
Статья 1067. Наследование по праву представления
1. Доля наследника по закону, умершего до открытия наследства или одновременно с наследодателем, переходит по праву представления к его соответствующим потомкам в случаях, предусмотренных пунктом 2 ,статьи 1061 пунктом 2 и пунктом 2 настоящего Кодекса, и делитсястатьи 1062 статьи 1063 между ними поровну.
2. Не наследуют по праву представления потомки наследника, который умер до открытия наследства или одновременно с наследодателем и который не имел бы права наследовать в соответствии со настоящего Кодекса.статьей 1045
Сноска. Статья 1067 в редакции Закона РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1068. Нетрудоспособные иждивенцы наследодателя
1. Граждане, относящиеся к наследникам по закону, указанным в статьях , , настоящего Кодекса, нетрудоспособные ко дню открытия1062 1063 1064
наследства, но не входящие в круг наследников той очереди, которая призывается к наследованию, наследуют по закону вместе и наравне с наследниками этой очереди, если не менее года до смерти наследодателя находились на его иждивении независимо от того, проживали они совместно с наследодателем или нет.
2. Наследники по закону, которые не входят в круг наследников, указанных в , , , настоящего Кодекса, но ко дню открытиястатьях 1061 1062 1063 1064
наследства являлись нетрудоспособными и не менее года до смерти наследодателя находились на его иждивении и проживали совместно с ним, наследуют вместе и наравне с наследниками той очереди, которая призывается к наследованию.
При отсутствии других наследников по закону указанные в пункте 2 настоящей статьи нетрудоспособные иждивенцы наследодателя наследуют самостоятельно в качестве наследников восьмой очереди.
Сноска. Статья 1068 в редакции Закона РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); с изменением, внесенным Законом РК от 21.01.2019 № 217-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1069. Право на обязательную долю в наследстве
1. Несовершеннолетние или нетрудоспособные дети наследодателя, а также его нетрудоспособные супруг и родители наследуют, независимо от содержания завещания, не менее половины доли, которая причиталась бы каждому из них при наследовании по закону (обязательная доля).
2. В обязательную долю засчитывается все, что наследник, имеющий право на такую долю, получает из наследства по завещанию и (или) по закону, в том числе стоимость имущества, состоящего из предметов обычной домашней обстановки и обихода, и стоимость установленного в пользу такого наследника завещательного отказа.
3. Любые ограничения и обременения, установленные в завещании для наследника, имеющего право на обязательную долю в наследстве, действительны лишь в отношении той части переходящего к нему наследства, которая превышает обязательную долю.
Статья 1070. Права супруга при наследовании
1. Принадлежащее супругу в силу завещания или закона право наследования не затрагивает других его имущественных прав, связанных с состоянием в браке с наследодателем, в том числе права собственности на часть имущества, совместно нажитого в браке.
2. По решению суда супруг может быть устранен от наследования по закону, если будет доказано, что брак с наследодателем фактически прекратился до открытия наследства, и супруги в течение не менее чем пяти лет до открытия наследства проживали раздельно.
Статья 1071. Охрана наследства и управление им при наследовании по закону
1. В случае, если часть имущества наследуется по завещанию, исполнитель завещания, назначенный наследодателем, осуществляет охрану всего наследства и управление им, включая и ту часть наследства, которая переходит в порядке наследования по закону.
Исполнитель завещания, назначенный в соответствии со статьей 1059 настоящего Кодекса наследниками по завещанию или судом, осуществляет функции по охране всего наследства в целом и управлению им, если наследники по закону не потребуют назначения доверительного управляющего наследством для исполнения указанных функций применительно к части наследства, переходящей в порядке наследования по закону.
2. Доверительный управляющий наследством назначается нотариусом по месту открытия наследства по просьбе одного или нескольких наследников по закону. Наследник по закону, не согласный с назначением управляющего наследством или его выбором, вправе оспорить назначение доверительного управляющего наследством в суде.
3. Если наследники по закону отсутствуют либо неизвестны, местные исполнительные органы городов республиканского значения, столицы, районов, городов областного значения должны обратиться к нотариусу с просьбой о назначении доверительного управляющего наследством. В случае явки
наследников по закону, доверительный управляющий наследством может быть отозван по их требованию с возмещением ему необходимых расходов и выплатой разумного вознаграждения за счет наследства.
4. Доверительный управляющий наследством осуществляет полномочия, предусмотренные настоящего Кодекса применительно кстатьей 1059 исполнителю завещания, поскольку иное не вытекает из особенностей наследования по закону.
5. Доверительный управляющий наследством имеет право на возмещение за счет наследства необходимых расходов по охране наследства и управлению им, а если иное не предусмотрено его соглашением с наследниками - и на вознаграждение.
Сноска. Статья 1071 с изменениями, внесенными законами РК от 20.12.2004 N 13 (вводится в действие с 01.01.2005); от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Глава 60. Приобретение наследства
Статья 1072. Принятие наследства
1. Для приобретения наследства наследник должен его принять. 2. Принятие наследником части наследства означает принятие всего
причитающегося ему наследства. При призвании наследника к наследованию одновременно по нескольким
основаниям наследник может принять наследство, причитающееся ему по одному из этих оснований, по нескольким из них или по всем основаниям.
Не допускается принятие наследства под условием или с оговорками. 3. Принятие наследства одним или несколькими наследниками не означает
принятия наследства остальными наследниками. 4. Принятое наследство признается принадлежащим наследнику со дня
открытия наследства независимо от времени его фактического принятия, а также независимо от момента государственной регистрации права наследника на наследственное имущество, когда такое право подлежит государственной регистрации.
Сноска. Статья 1072 в редакции Закона РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 1072-1. Способы принятия наследства
1. Принятие наследства осуществляется подачей по месту открытия наследства нотариусу или уполномоченному в соответствии с законом на выдачу свидетельства о праве на наследство должностному лицу заявления наследника о принятии наследства либо заявления наследника о выдаче свидетельства о праве на наследство.
Если заявление наследника передается нотариусу другим лицом или пересылается по почте, подпись наследника на заявлении должна быть засвидетельствована нотариусом, должностным лицом, уполномоченным совершать нотариальные действия (пункт 5 настоящего Кодекса),статьи 1051 или лицом, уполномоченным удостоверять доверенности в соответствии с
статьи 167 настоящего Кодекса.пунктом 3 Принятие наследства через представителя возможно, если в доверенности
специально предусмотрено полномочие на принятие наследства. Для принятия наследства законным представителем доверенность не требуется.
2. Признается, пока не доказано иное, что наследник принял наследство, если он совершил действия, свидетельствующие о фактическом принятии наследства, в частности, если наследник:
вступил во владение или в управление наследственным имуществом; принял меры по сохранению наследственного имущества, защите его от
посягательств или притязаний третьих лиц; произвел за свой счет расходы на содержание наследственного имущества;
оплатил за свой счет долги наследодателя или получил от третьих лиц причитавшиеся наследодателю деньги.
Сноска. Кодекс дополнен статьей 1072-1 в соответствии с Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1072-2. Срок принятия наследства
1. Наследство может быть принято в течение шести месяцев со дня открытия наследства.
В случае открытия наследства в день предполагаемой смерти гражданина или объявления его умершим (пункт 2 настоящего Кодекса) наследствостатьи 1042 может быть принято в течение шести месяцев со дня смерти наследодателя, а при объявлении его умершим - со дня вступления в законную силу решения суда об объявлении гражданина умершим, если в решении суда не указан иной день.
2. Если право наследования возникает для других лиц вследствие отказа наследника от наследства, непринятия наследства другим наследником или
устранения от наследования наследника по основаниям, установленным статьей настоящего Кодекса, такие лица могут принять наследство в течение шести1045
месяцев со дня возникновения у них права наследования. Сноска. Кодекс дополнен статьей 1072-2 в соответствии с Законом РК от
12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1072-3. Принятие наследства по истечении установленного срока
По заявлению наследника, пропустившего срок, установленный для принятия наследства ( настоящего Кодекса), суд может восстановить этотстатья 1072-2 срок и признать наследника принявшим наследство, если наследник пропустил этот срок по уважительным причинам и при условии, что наследник, пропустивший срок, установленный для принятия наследства, обратился в суд в течение шести месяцев после того, как причины пропуска этого срока отпали.
При признании наследника принявшим наследство суд определяет доли всех наследников в наследственном имуществе и при необходимости - меры по защите прав нового наследника на получение причитающейся ему доли наследства. Ранее выданные свидетельства о праве на наследство признаются судом недействительными.
Сноска. Кодекс дополнен статьей 1072-3 в соответствии с Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1072-4. Переход права на принятие наследства (наследственная трансмиссия)
Если наследник по закону или по завещанию умер после открытия наследства , не успев его принять в срок, установленный статьей 1072-2 настоящего Кодекса , право на принятие причитающейся ему доли наследства переходит к его наследникам.
Это право умершего наследника может быть осуществлено его наследниками на общих основаниях в течение оставшейся части срока для принятия наследства .
Если оставшаяся часть срока менее трех месяцев, он удлиняется до трех месяцев.
По истечении срока, установленного для принятия наследства, наследники умершего наследника могут быть признаны судом принявшими наследство в соответствии со настоящего Кодекса, если суд найдетстатьей 1072-3 уважительными причины пропуска ими этого срока.
Право наследника принять часть наследства в качестве обязательной доли в соответствии со настоящего Кодекса не переходит к егостатьей 1069 наследникам.
Сноска. Кодекс дополнен статьей 1072-4 в соответствии с Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1073. Выдача свидетельства о праве на наследство
1. Нотариус по месту открытия наследства по просьбе наследника обязан выдать ему свидетельство о праве на наследство.
2. Свидетельство о праве на наследство выдается по истечении шести месяцев со дня открытия наследства.
При наследовании как по завещанию, так и по закону, свидетельство может быть выдано до истечения указанного срока, если у нотариуса имеются достоверные данные о том, что кроме лиц, обратившихся за выдачей свидетельства, других наследников в отношении соответствующего имущества либо всего наследства не имеется.
3. Выдача свидетельства о праве на наследство приостанавливается при наличии зачатого, но еще не родившегося наследника до его рождения.
Сноска. Статья 1073 с изменением, внесенным Законом РК от 21.01.2019 № 217-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1074. Право отказаться от наследства
1. Наследник вправе отказаться от наследства в течение шести месяцев со дня открытия наследства. При наличии уважительных причин этот срок может быть продлен судом, однако не более чем на два месяца.
2. Отказ от наследства совершается подачей наследником заявления нотариусу по месту открытия наследства.
Отказ от наследства через представителя возможен, если в доверенности специально предусмотрено полномочие на отказ.
3. Отказ от наследства не может быть впоследствии отменен или взят обратно .
4. Наследник утрачивает право отказаться от наследства по истечении предоставленного ему для этого срока. Он утрачивает это право также и до истечения указанного срока, если фактически вступил во владение наследственным имуществом либо распорядился им, либо обратился за получением документов, удостоверяющих его права на это имущество.
5. При отказе от наследства наследник вправе указать, что он отказывается от него в пользу других лиц из числа наследников по завещанию или по закону любой очереди, в том числе в пользу тех, которые призваны к наследованию по праву представления.
Отказ от наследства в пользу наследников, лишенных завещателем наследства, не допускается.
6. Если наследник призывается к наследованию и по завещанию, и по закону, он вправе отказаться от наследства, причитающегося ему по одному из этих оснований или по обоим основаниям.
7. Наследник вправе отказаться от наследства, причитающегося ему по праву приращения ( настоящего Кодекса), независимо от наследованиястатья 1079 остальной части наследства.
8. За исключением случаев, предусмотренных в настоящей статье, отказ от части наследства, отказ от наследства с оговорками или под условием не допускается.
Сноска. Статья 1074 с изменениями, внесенными законами РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования); от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 1075. Право отказаться от получения завещательного отказа
1. Отказополучатель вправе отказаться от завещательного отказа. Частичный отказ, отказ с оговорками, под условием или в пользу другого лица не допускаются.
2. Право, предусмотренное настоящей статьей, не зависит от права отказополучателя, являющегося одновременно наследником, на отказ от наследства.
3. Если отказополучатель воспользовался правом, предусмотренным настоящей статьей, наследник, обремененный завещательным отказом, освобождается от обязанности его исполнения.
Статья 1076. Раздел наследства
1. Любой из наследников по закону, принявших наследство, вправе потребовать раздела наследства.
Раздел наследства производится по соглашению наследников в соответствии с причитающимися им долями, а при недостижении соглашения - в судебном порядке.
Если в состав наследства входит имущество, права наследодателя на которое не зарегистрированы и не считаются возникшими без регистрации, раздел имущества между наследниками производится после регистрации прав наследодателя в установленном законодательством порядке.
2. Правила настоящей статьи применяются к разделу наследства между наследниками по завещанию в случаях, когда все наследство или часть его завещаны наследникам в долях без указания конкретного имущества.
Сноска. Статья 1076 с изменением, внесенным Законом РК от 25.03.2011 № 421-IV (вводится в действие по истечении десяти календарных дней после его первого официального опубликования).
Статья 1077. Права отсутствующих наследников
1. Если среди наследников имеются лица, место нахождения которых неизвестно, остальные наследники, исполнитель завещания (управляющий наследством) и нотариус обязаны принять разумные меры к установлению их места нахождения и призванию их к наследованию.
2. Если призванный к наследованию отсутствующий наследник, место нахождения которого установлено, не отказался от наследства в течение срока, предусмотренного настоящего Кодекса, остальные наследникистатьей 1074 обязаны известить его о своем намерении произвести раздел наследства.
Если в течение трех месяцев с момента извещения, предусмотренного предыдущей частью, отсутствующий наследник не уведомит остальных наследников о своем желании участвовать в соглашении о разделе наследства, остальные наследники вправе произвести раздел по соглашению между собой, выделив долю, причитающуюся отсутствующему наследнику.
3. Если в течение одного года со дня открытия наследства место нахождения отсутствующего наследника не установлено, и нет сведений о его отказе от наследства, остальные наследники вправе произвести раздел по правилам части второй пункта 2 настоящей статьи.
4. При наличии зачатого, но еще не родившегося наследника раздел наследства может быть произведен лишь после рождения такого наследника.
Если зачатый наследник родится живым, то остальные наследники вправе произвести раздел наследства только с выделом причитающейся ему наследственной доли. Для охраны интересов новорожденного к участию в разделе может быть приглашен представитель органа опеки и попечительства.
Статья 1078. Преимущественное право отдельных наследников на имущество, входящее в наследство
1. Наследники, в течение года до открытия наследства проживавшие совместно с наследодателем, имеют преимущественное право на наследование жилища, а также домашней утвари и предметов домашнего обихода.
2. Наследники, обладавшие вместе с наследодателем правом общей собственности на имущество, имеют преимущественное право наследования имущества, находившегося в общей собственности.
3. При осуществлении преимущественных прав, указанных в пунктах 1 и 2 настоящей статьи, должны быть соблюдены имущественные интересы других наследников, участвующих в разделе. Если имущества, образующего наследство, недостаточно для предоставления причитающихся им долей, наследник, осуществляющий преимущественное право, должен предоставить им соответствующую денежную или имущественную компенсацию.
Статья 1079. Приращение наследственных долей
1. В случае отказа наследника от наследства либо его отпадения по обстоятельствам, указанным в настоящем Кодексе, часть наследства, которая причиталась бы такому наследнику, поступает к наследникам по закону, призванным к наследованию, и распределяется между ними пропорционально их наследственным долям.
Если наследодатель завещал все имущество назначенным им наследникам, часть наследства, причитавшаяся отказавшемуся от наследства или отпавшему наследнику, поступает к остальным наследникам по завещанию и распределяется между ними пропорционально их наследственным долям, поскольку иное не предусмотрено завещанием.
2. Правила, содержащиеся в пункте 1 настоящей статьи, не применяются: 1) если отказавшемуся или отпавшему наследнику подназначен наследник; 2) при отказе наследника от наследства в пользу определенного лица;
3) в случаях, когда при наследовании по закону отказ или отпадение наследника влечет призвание к наследованию наследников следующей очереди.
Статья 1080. Расходы, подлежащие оплате за счет наследства
За счет наследства до его распределения между наследниками подлежат удовлетворению требования о возмещении необходимых расходов, вызванных предсмертной болезнью наследодателя, расходов на погребение наследодателя, расходов, связанных с охраной, управлением наследством, исполнением завещания, а также выплатой вознаграждения исполнителю завещания или
доверительному управляющему наследством. Эти требования подлежат удовлетворению из стоимости наследства преимущественно перед всеми другими требованиями, в том числе и обеспеченными залогом.
Статья 1081. Взыскание долгов наследодателя кредиторами
Кредиторы наследодателя вправе предъявить свои требования, вытекающие из обязательств наследодателя, к исполнителю завещания (доверительному управляющему наследством) или к наследникам, отвечающим как солидарные должники в пределах стоимости имущества, перешедшего к каждому наследнику .
В случае, если наследники, принявшие наследство, уклоняются от регистрации имущества, входящего в состав наследства, или прав на него, кредиторы наследодателя вправе требовать принудительной регистрации.
Сноска. Статья 1081 с изменением, внесенным Законом РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1082. Наследование в крестьянском или фермерском хозяйстве
В случае смерти члена крестьянского или фермерского хозяйства наследство открывается по общим правилам. Наследники имеют право на получение денежной компенсации, соразмерной его доле в общей собственности на это имущество.
Сноска. Статья 1082 с изменениями, внесенными Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1083. Выморочное имущество
Сноска. Заголовок статьи 1083 с изменением, внесенным Законом РК от 01.03.2011 (вводится в действие со дня его первого официального№ 414-IV опубликования).
1. Если нет наследников ни по завещанию, ни по закону, либо никто из наследников не имеет права наследовать ( настоящего Кодекса), либостатья 1045 все они отказались от наследства ( настоящего Кодекса), наследствостатья 1074 признается выморочным имуществом.
2. Выморочное имущество переходит в коммунальную собственность по месту открытия наследства.
Организация работы по учету, хранению, оценке, дальнейшему использованию и реализации выморочного имущества, поступившего в
коммунальную собственность, осуществляется органом, уполномоченным управлять коммунальной собственностью.
Порядок учета, хранения, оценки, дальнейшего использования и реализации выморочного имущества, поступившего в государственную собственность, определяется Правительством Республики Казахстан.
3. Наследство признается судом выморочным имуществом на основании заявления местных исполнительных органов городов республиканского значения , столицы, районов, городов областного значения по месту открытия наследства по истечении одного года со дня открытия наследства. Наследство может быть признано выморочным имуществом до истечения указанного срока, если расходы, связанные с охраной наследства и управлением им, превысили его стоимость.
4. Охрана выморочного имущества и управление им осуществляются в соответствии со статьей 1071 настоящего Кодекса.
5. Правила, предусмотренные статьями и настоящего Кодекса,1080 1081 применяются и к выморочному имуществу.
Сноска. Статья 1083 с изменениями, внесенными законами РК от 24.12.2001 N 276; от 20.12.2004 N 13 (вводится в действие с 01.01.2005); от 22.06.2006 N 147 ; от 01.03.2011 № 414-IV (вводится в действие со дня его первого официального опубликования).
Раздел 7 Международное частное право Глава 61. Общие положения
Статья 1084. Определение права, подлежащего применению к гражданско-правовым отношениям, осложненным иностранным элементом
1. Право, подлежащее применению к гражданско-правовым отношениям с участием иностранных граждан или иностранных юридических лиц либо осложненным иным иностранным элементом, определяется на основании настоящего Кодекса, иных законодательных актов, международных договоров, ратифицированных Республикой Казахстан и признаваемых международных обычаев.
2. Если в соответствии с пунктом 1 настоящей статьи невозможно определить право, подлежащее применению, применяется право, наиболее тесно связанное с гражданско-правовыми отношениями, осложненными иностранным элементом.
3. Правила настоящего раздела об определении права, подлежащего применению судом, соответственно применяются и другими органами, наделенными полномочиями решать вопрос о подлежащем применению праве.
Статья 1085. Квалификация юридических понятий (правовая квалификация)
1. Квалификация юридических понятий (правовая квалификация) судом основывается на их толковании в соответствии с правом страны суда, если иное не предусмотрено законодательными актами.
2. Если юридические понятия не известны праву страны суда или известны под другим названием или с другим содержанием и не могут быть определены путем толкования по праву страны суда, то при квалификации юридических понятий (правовой квалификации) может также применяться право иностранного государства.
Статья 1086. Установление содержания норм иностранного права
1. При применении иностранного права суд устанавливает содержание его норм в соответствии с их официальным толкованием, практикой применения и доктриной в соответствующем иностранном государстве.
2. В целях установления содержания норм иностранного права суд может обратиться в установленном порядке за содействием и разъяснением к Министерству юстиции Республики Казахстан и иным компетентным органам и учреждениям Республики Казахстан, в том числе за границей, либо привлечь экспертов.
3. Лица, участвующие в деле, вправе представлять документы, подтверждающие содержание норм иностранного права, на которые они ссылаются в обоснование своих требований или возражений, и иным образом содействовать суду в установлении содержания этих норм.
4. Если содержание норм иностранного права, несмотря на предпринятые в соответствии с настоящей статьей меры, в разумные сроки не установлено, применяется право Республики Казахстан.
Статья 1087. Обратная отсылка и отсылка к праву третьей страны
1. Любая отсылка к иностранному праву в соответствии с правилами настоящего раздела должна рассматриваться, кроме случаев, предусмотренных настоящей статьей, как отсылка к материальному, а не коллизионному праву соответствующей страны.
2. Обратная отсылка к праву Республики Казахстан и отсылка к праву третьей страны принимаются в случаях применения иностранного права, согласно статье
, пунктам 2, 3, 5 , настоящего Кодекса.1094 статьи 1095 статье 1097
Статья 1088. Последствия обхода закона
Соглашения и иные действия участников отношений, регулируемых настоящим Кодексом, направленные на то, чтобы в обход правил настоящего раздела о подлежащем применению праве подчинить соответствующие отношения иному праву, ничтожны. В этом случае применяется право, подлежащее применению в соответствии с настоящим разделом.
Сноска. Статья 1088 в редакции Закона РК от 27.02.2017 № 49-VI (вводится в действие по истечении десяти календарных дней после дня его первого официального опубликования).
Статья 1089. Взаимность
1. Суд применяет иностранное право, независимо от того, применяется ли в соответствующем иностранном государстве к аналогичным отношениям право Республики Казахстан, за исключением случаев, когда применение иностранного права на началах взаимности предусмотрено законодательными актами Республики Казахстан.
2. Если применение иностранного права зависит от взаимности, предполагается, что она существует, поскольку не доказано иное.
Статья 1090. Оговорка о публичном порядке
1. Иностранное право не применяется в случаях, когда его применение противоречило бы основам правопорядка Республики Казахстан (публичному порядку Республики Казахстан). В этих случаях применяется право Республики Казахстан.
2. Отказ в применении иностранного права не может быть основан лишь на отличии политической или экономической системы соответствующего иностранного государства от политической или экономической системы Республики Казахстан.
Статья 1091. Применение императивных норм
1. Правила настоящего раздела не затрагивают действия императивных норм законодательства Республики Казахстан, которые вследствие указания в самой норме или ввиду их особого значения для обеспечения прав и охраняемых
законом интересов участников гражданского оборота, регулирующих соответствующие отношения независимо от подлежащего применению права.
2. При применении права какой-либо страны, согласно правилам настоящего раздела, суд может применить императивные нормы права другой страны, имеющего тесную связь с отношением, если согласно праву этой другой страны, такие нормы должны регулировать соответствующие отношения независимо от подлежащего применению права. При этом суд должен принимать во внимание назначение и характер таких норм, а также последствия их применения.
Статья 1092. Применение права страны с множественностью правовых систем
В случаях, когда подлежит применению право страны, в которой действуют несколько территориальных или правовых систем, применяется правовая система в соответствии с правом этой страны.
Статья 1093. Реторсии
Республикой Казахстан могут быть установлены ответные ограничения ( реторсии) в отношении прав граждан и юридических лиц тех государств, в которых имеются специальные ограничения прав граждан и юридических лиц Республики Казахстан.
Глава 62. Коллизионные нормы Параграф 1. Лица
Статья 1094. Личный закон физического лица
1. Личным законом физического лица считается право страны, гражданство которой это лицо имеет. При наличии у лица двух или более гражданств личным законом считается право страны, с которой лицо наиболее тесно связано.
2. Личным законом лица без гражданства считается право страны, в которой это лицо постоянно проживает.
3. Личным законом беженца считается право страны, предоставившей убежище.
Статья 1095. Правоспособность и дееспособность физического лица
1. Гражданская правоспособность физического лица определяется его личным законом. При этом иностранные граждане и лица без гражданства пользуются в Республике Казахстан гражданской правоспособностью наравне с
гражданами Республики Казахстан, кроме случаев, установленных законодательными актами Республики Казахстан или международными договорами, ратифицированными Республикой Казахстан.
2. Дееспособность физического лица определяется его личным законом. 3. Гражданская дееспособность физического лица в отношении сделок и
обязательств, возникающих вследствие причинения вреда, определяется по праву страны места совершения сделок или возникновения обязательств из причинения вреда.
4. Способность физического лица быть индивидуальным предпринимателем и иметь связанные с этим права и обязанности определяется по праву страны, где физическое лицо зарегистрировано в качестве индивидуального предпринимателя. При отсутствии страны регистрации применяется право страны основного места осуществления индивидуальной предпринимательской деятельности.
5. Признание физического лица недееспособным или ограниченно дееспособным подчиняется праву страны суда.
Сноска. Статья 1095 с изменениями, внесенными Законом РК от 12.01.2007 № 225 (вводится в действие со дня его официального опубликования).
Статья 1096. Признание физического лица безвестно отсутствующим и объявление его умершим
Признание физического лица безвестно отсутствующим и объявление его умершим подчиняется праву страны суда.
Статья 1097. Имя физического лица
Права физического лица на имя, его использование и защиту определяются его личным законом, если иное не вытекает из правил, предусмотренных
и статьи 15, и настоящего Кодекса.пунктами 5 7 статьями 1103 1120
Статья 1098. Регистрация актов гражданского состояния граждан Республики Казахстан вне пределов Республики Казахстан
Регистрация актов гражданского состояния граждан Республики Казахстан, проживающих вне пределов Республики Казахстан, осуществляется в консульских учреждениях Республики Казахстан. При этом применяются законодательные акты Республики Казахстан.
Статья 1099. Признание документов, выданных органами иностранного государства в удостоверение актов гражданского состояния
Документы, выданные компетентными органами иностранных государств в удостоверение актов гражданского состояния, совершенных вне пределов Республики Казахстан по законам соответствующих государств в отношении граждан Республики Казахстан, иностранных граждан и лиц без гражданства, признаются действительными в Республике Казахстан при наличии легализации.
Статья 1100. Закон юридического лица
Законом юридического лица считается право страны, где это юридическое лицо учреждено.
Статья 1101. Правоспособность юридического лица
1. Гражданская правоспособность юридического лица определяется законом юридического лица.
2. Иностранное юридическое лицо не может ссылаться на ограничение полномочий его органа или представителя на совершение сделки, не известное праву страны, в которой орган или представитель иностранного юридического лица совершил сделку.
3. Гражданская правоспособность иностранных организаций, не являющихся юридическим лицом по иностранному праву, определяется по праву страны, где организация учреждена.
К деятельности таких организаций, если применимым является право Республики Казахстан, применяются правила настоящего Кодекса, которые регулируют деятельность юридических лиц, являющихся коммерческими организациями, если иное не вытекает из законодательства Республики Казахстан или существа обязательства.
Статья 1102. Участие государства в гражданско-правовых отношениях с иностранным элементом
1. К гражданско-правовым отношениям с иностранным элементом с участием государства правила настоящего раздела применяются на общих основаниях, если иное не предусмотрено законодательными актами Республики Казахстан.
2. В гражданско-правовых отношениях с иностранным элементом Республика Казахстан пользуется юрисдикционным иммунитетом в отношении себя и своей собственности от юрисдикции судов другого государства, включая судебный
иммунитет, иммунитет от обеспечения иска и иммунитет от принудительного исполнения судебного акта, если иное не установлено:
в международном договоре Республики Казахстан; в письменном соглашении, не являющемся международным договором
Республики Казахстан; путем заявления в суде или письменного уведомления в рамках конкретного
разбирательства. Сноска. Статья 1102 в редакции Закона РК от 05.02.2010 № 249-I.
Параграф 2. Личные неимущественные права
Статья 1103. Защита личных неимущественных прав
К личным неимущественным правам применяется право страны, где имело место действие или иное обстоятельство, послужившее основанием для требования о защите таких прав.
Параграф 3. Сделки, представительство, исковая давность
Статья 1104. Форма сделки
1. Форма сделки подчиняется праву места ее совершения. Однако сделка, совершенная за границей, не может быть признана недействительной вследствие несоблюдения формы, если соблюдены требования права Республики Казахстан.
2. Внешнеэкономическая сделка, хотя бы одним из участников которой является юридическое лицо Республики Казахстан или гражданин Республики Казахстан, совершается, независимо от места заключения сделки, в письменной форме.
3. Форма сделки в отношении недвижимого имущества подчиняется праву страны, где находится это имущество, а в отношении недвижимого имущества, которое внесено в государственный реестр в Республике Казахстан, - праву Республики Казахстан.
Статья 1105. Доверенность
Форма и срок действия доверенности определяются по праву страны, где выдана доверенность. Однако доверенность не может быть признана недействительной вследствие несоблюдения формы, если последняя удовлетворяет требованиям права Республики Казахстан.
Статья 1106. Исковая давность
1. Исковая давность определяется по праву страны, применяемому для регулирования соответствующего отношения.
2. Требования, на которые исковая давность не распространяется, определяются по праву Республики Казахстан, если хотя бы один из участников соответствующего отношения является гражданином Республики Казахстан или юридическим лицом Республики Казахстан.
Параграф 4. Вещные права
Статья 1107. Общие положения о праве, применимом к вещным правам
1. Право собственности и другие вещные права на недвижимое и движимое имущество определяются по праву страны, где это имущество находится, если иное не предусмотрено законодательными актами Республики Казахстан.
2. Принадлежность имущества к недвижимым или движимым вещам, а также иная юридическая квалификация имущества определяются по праву страны, где это имущество находится.
Статья 1108. Возникновение и прекращение вещных прав
1. Возникновение и прекращение вещных прав на имущество определяются по праву страны, где это имущество находилось в момент, когда имело место действие или иное обстоятельство, послужившее основанием для возникновения либо прекращения вещных прав, если иное не предусмотрено законодательными актами Республики Казахстан.
2. Возникновение и прекращение вещных прав на имущество, являющееся предметом сделки, определяется по праву страны, которому подчинена данная сделка, если иное не установлено соглашением сторон.
3. Возникновение права собственности на имущество вследствие приобретательной давности определяется правом страны, где имущество находилось в момент окончания срока приобретательной давности.
Статья 1109. Вещные права на транспортные средства и иное имущество, подлежащие внесению в государственные реестры
Вещные права на транспортные средства и иное имущество, подлежащие государственной регистрации, определяются по праву страны, где эти транспортные средства или имущество внесены в государственный реестр.
Статья 1110. Вещные права на движимое имущество в пути
Право собственности и другие вещные права на движимое имущество, находящееся в пути по сделке, определяются по праву страны, из которой это имущество отправлено, если иное не установлено соглашением сторон.
Статья 1111. Защита вещных прав
1. К защите права собственности и иных вещных прав применяется по выбору заявителя право страны, где имущество находится, или право страны суда.
2. К защите права собственности и иных вещных прав на недвижимое имущество применяется право страны, в которой это имущество находится. В отношении имущества, которое внесено в государственный реестр Республики Казахстан, применяется право Республики Казахстан.
Параграф 5. Договорные обязательства
Статья 1112. Выбор права соглашением сторон договора
1. Договор регулируется правом страны, выбранным соглашением сторон, если иное не предусмотрено законодательными актами Республики Казахстан.
2. Соглашение сторон о выборе подлежащего применению права должно быть явно выражено или прямо вытекать из условий договора и обстоятельств дела, рассматриваемых в их совокупности.
3. Стороны договора могут избрать применимое право как для договора в целом, так и для отдельных его частей.
4. Выбор применимого права может быть сделан сторонами договора в любое время как при заключении договора, так и в последующем. Стороны могут также в любое время договориться об изменении применимого к договору права.
Статья 1113. Право, применяемое к договору при отсутствии соглашения сторон
1. При отсутствии соглашения сторон договора о подлежащем применению праве к этому договору применяется право страны, где учреждена, имеет место жительства или основное место деятельности сторона, являющаяся:
1) продавцом - в договоре купли-продажи; 2) дарителем - в договоре дарения;
3) арендодателем или наймодателем - в договоре имущественного найма ( аренды);
4) ссудодателем - в договоре безвозмездного пользования имуществом;
5) подрядчиком - в договоре подряда; 6) перевозчиком - в договоре перевозки; 7) экспедитором - в договоре транспортной экспедиции; 8) кредитором - в договоре займа или ином кредитном договоре; 9) поверенным - в договоре поручения; 10) комиссионером - в договоре комиссии; 11) хранителем - в договоре хранения; 12) страховщиком - в договоре страхования; 13) поручителем - в договоре поручительства; 14) залогодателем - в договоре залога;
15) лицензиаром - в лицензионном договоре о пользовании исключительными правами.
2. К правам и обязанностям по договору, предметом которого является недвижимость, а также по договору о доверительном управлении имуществом применяется право страны, где это имущество находится, а в отношении имущества, которое внесено в государственный реестр в Республике Казахстан - право Республики Казахстан.
3. При отсутствии соглашения сторон договора о подлежащем применению праве применяется, независимо от положений пункта 1 настоящей статьи:
1) к договорам о совместной деятельности и строительного подряда - право страны, где такая деятельность осуществляется или создаются предусмотренные договором результаты;
2) к договору, заключенному по итогам конкурсных торгов (тендера, аукциона) или на бирже - право страны, где проводятся конкурсные торги или находится биржа.
4. К договорам, не перечисленным в пунктах 1-3 настоящей статьи, при отсутствии соглашения сторон о подлежащем применению праве, применяется право страны, где учреждена, имеет место жительства или основное место деятельности сторона, которая осуществляет исполнение, имеющее решающее значение для содержания такого договора. При невозможности определить исполнение, имеющее решающее значение для содержания договора, применяется право страны, с которой договор наиболее тесно связан.
5. В отношении приемки исполнения по договору принимается во внимание право места проведения такой приемки, поскольку сторонами не согласовано иное.
6. Если в договоре использованы принятые в международном обороте торговые термины, то при отсутствии в договоре иных указаний, считается, что сторонами согласовано применение к их отношениям обычаев делового оборота, существующих в отношении соответствующих торговых терминов.
Статья 1114. Право, применяемое к договору о создании юридического лица с иностранным участием
1. К договору о создании юридического лица с иностранным участием применяется право страны, где учреждается или учреждено юридическое лицо.
2. Отношения, регулируемые настоящей статьей, включают в себя отношения по созданию и прекращению юридического лица, передаче доли участия в нем и другие отношения между участниками юридического лица, связанные с их взаимными правами и обязанностями (в том числе определяемые последующими соглашениями).
3. Положения настоящей статьи применяются и в случае установления взаимных прав и обязанностей участников юридического лица с иностранным участием другими учредительными документами.
Статья 1115. Сфера действия применимого права
1. Право, применяемое к договору в силу положений настоящего параграфа, охватывает, в частности: 1) толкование договора; 2) права и обязанности сторон; 3) исполнение договора; 4) последствия неисполнения или ненадлежащего исполнения договора; 5) прекращение договора; 6) основания и последствия недействительности договора; 7) уступку требования и перевод долга в связи с договором.
2. В отношении способов и процедуры исполнения, а также мер, которые должны быть приняты в случае ненадлежащего исполнения, кроме применимого права принимается во внимание и право страны, в которой происходит исполнение.
Параграф 6. Внедоговорные обязательства
Статья 1116. Обязательства из односторонних сделок
К обязательствам из односторонних сделок (публичное обещание награды, деятельность в чужом интересе без поручения и другие) применяется право места совершения сделки. Место совершения односторонней сделки определяется по праву Республики Казахстан.
Статья 1117. Обязательства вследствие причинения вреда
1. Права и обязанности по обязательствам, возникающим вследствие причинения вреда, определяются по праву страны, где имело место действие или иное обстоятельство, послужившее основанием для требования о возмещении вреда.
2. Права и обязанности по обязательствам, возникающим вследствие причинения вреда за границей, если стороны являются гражданами или юридическими лицами одного и того же государства, определяются по праву этого государства.
3. Иностранное право не применяется, если действие или иное обстоятельство, служащее основанием для требования о возмещении вреда, по законодательным актам Республики Казахстан не является противоправным.
Статья 1118. Ответственность за ущерб, причиненный потребителю
К требованию о возмещении ущерба, возникшего у потребителя в связи с покупкой товара или оказанием услуги, по выбору потребителя применяется:
1) право страны, где находится место жительства потребителя; 2) право страны, где находится место жительства или место нахождения
производителя или лица, оказавшего услугу; 3) право страны, где потребитель приобрел товар или ему была оказана
услуга.
Статья 1119. Неосновательное обогащение
1. К обязательствам, возникающим вследствие неосновательного обогащения, применяется право страны, где обогащение имело место.
2. Если неосновательное обогащение возникает вследствие отпадения основания, по которому приобретено или сбережено имущество, применимое право определяется по праву страны, которому было подчинено это основание.
3. Понятие неосновательного обогащения определяется по праву Республики Казахстан.
Параграф 7. Интеллектуальная собственность
Статья 1120. Права на интеллектуальную собственность
1. К правам на интеллектуальную собственность применяется право страны, где испрашивается защита этих прав.
2. Договоры, имеющие своим предметом права на интеллектуальную собственность, регулируются правом, определяемым согласно положениям настоящего раздела о договорных обязательствах.
Параграф 8. Наследственное право
Статья 1121. Отношения по наследованию
Отношения по наследованию определяются по праву страны, где наследодатель имел последнее постоянное место жительства, поскольку иное не предусмотрено и настоящего Кодекса, если наследодателемстатьями 1122 1123 не избрано в завещании право страны, гражданином которой он является.
Статья 1122. Способность лица к составлению и отмене завещания, форма завещания и акта его отмены
Способность лица к составлению и отмене завещания, а также форма завещания и акта его отмены определяются по праву страны, где наследодатель имел постоянное место жительства в момент составления акта, если наследодателем не избрано в завещании право страны, гражданином которой он является. Однако завещание или его отмена не могут быть признаны недействительными вследствие несоблюдения формы, если последняя удовлетворяет требованиям права места составления акта или требованиям права Республики Казахстан.
Статья 1123. Наследование недвижимого имущества и имущества, подлежащего внесению в государственный реестр
Наследование недвижимого имущества определяется по праву страны, где находится это имущество, а имущество, которое внесено в государственный реестр в Республике Казахстан, - по праву Республики Казахстан. Тем же правом определяется способность лица к составлению или отмене завещания, а также форма последнего, если завещается указанное имущество.
Параграф 9. Опека и попечительство
Статья 1124. Опека и попечительство
1. Опека и попечительство над несовершеннолетними, недееспособными или ограниченными в дееспособности совершеннолетними лицами устанавливается и
отменяется по личному закону лица, в отношении которого устанавливается или отменяется опека и попечительство.
2. Обязанность опекуна (попечителя) принять опекунство (попечительство) определяется по личному закону лица, назначаемого опекуном (попечителем).
3. Правоотношения между опекуном (попечителем) и лицом, находящимся под опекой (попечительством), определяются по праву страны, учреждение которой назначило опекуна (попечителя). Однако, если лицо, находящееся под опекой (попечительством), проживает в Республике Казахстан, применяется право Республики Казахстан, если оно более благоприятно для этого лица.
4. Опека (попечительство), установленная над гражданами Республики Казахстан, проживающими вне пределов Республики Казахстан, признается действительной в Республике Казахстан, если против
установления опеки (попечительства) или против ее признания нет основанных на законе возражений соответствующего консульского учреждения Республики Казахстан.
Президент Республики Казахстан
© 2012. РГП на ПХВ «Институт законодательства и правовой информации Республики Казахстан» Министерства юстиции Республики Казахстан