5B050900 Finance 050704 csse, 050703 Information Systems, 050602 Computer Science, 05b070400 Computer Science and Software engineer

5B050400 Journalism

ALMATY 2014

Author Professor K.S.Maulenov

Academic-methodical complex for full time student is based on LMCD Law in Kazakhstan for 5B050700 Management, 5B050900 Finance 050704 CSSE, 050703 Information Systems, 050602 Computer Science, 05b070400 Computer Science and Software engineer, 5B050400 Journalism

Content of academic complex for student

1	Individual plan of student
2	Syllabus
3	Methodical instructions for SIW, including office hours
4	The sample questions for all types of knowledge control
5	Glossary

Methodical recommendations to make presentations on course “Law in Kazakhstan” (siw, siwic)

1. Choose the topic to make presentation (dl.iitu.kz course Law in Kazakhstan K.Maulenov). You may choose your own topic for presentation. It should be legal debating problem in Kazakhstan or on the international level. Issue for your work should not be very extensive or spread question. Better to take one problematic issue and try to offer ways to improve the situation, legislation of Kazakhstan.

2. Choose the participants of your presentation. Each participant should offer one recommendation to improve the situation by the problematic issue of presentation.

3. Observe the sources (legislation, law of Kazakhstan, international law) by the issue of presentation, notify the problematic issue, which you would like to present, analyze the situation in our country, and make an agenda.

4. To make an analysis you should compare with the legislation and situation with other countries. Look the data (other countries and Kazakhstan), ratings of countries, opinions of scientists (foreign countries and RK) and the ways to solve the problem of presentation. Look the legislation of countries where these problems have been solved, or the countries on the way to solve such problems. Better to take countries on the top of ratings, developed countries.

5. Make the comparison with the legislation of foreign countries and legislation of Kazakhstan, compare with the scientists’ opinions. Analyze the situation by the problematic issue in foreign countries.

6. Make the conclusion (offer suggestions, recommendations to solve the problem on the base of your analysis and on the comparison with situation and legislation of foreign countries). Make reasons to prove your offers to solve the problematic issue of your presentation.

7. Make the debates, argue with other students (about 1-2 minutes)

8. Your presentation should last about 5 minutes and 1-2 minutes should be the discussion about your offers to solve the problem.

#	Approximate agenda
1	Introduction (definitions, concepts, national legislation, international legislation, description the problem) 1-2 slides
4	Analysis (data, ratings, data, statistics, comparison – take improved countries by your issue, analysis of situation in other countries and in Kazakhstan) 3-5 slides
5	Conclusion (suggestions and recommendations to improve the situation, the ways to solve the problem) 1-2 slides

Synopsis of lectures “Law in Kazakhstan” discipline

Lecture 1. Fundamental definitions about State, Law and State-legal phenomenon

1. Introduction to discipline: System of the discipline.

2. Definition of the state. Different types of states. Correlation society and state. Signs of state.

3. Definition of law. Law nature. Law branch. Classification of law. Comparative legal systems: continental and common-law systems. Fundamental principles of Law: political power, property ship, democratism, internationalism, humanism. Law and morality. Sources of Law: definition, hierarchy

To secure political power to people. People are the only source of state power. Power can be realized directly and through representatives.

Development, protection of property and equity of its subjects is an important condition of establishment of material and technical basis of the state.

Democratism means legal establishment of such human rights and freedoms which in practice provide the right to participate in solution of state affairs in connection with the wide range of civil rights and freedoms.

Internationalism is recognition and provision of all nations and peoples with the right of judicial and factual equity on their political, economic and cultural development.

Humanism is recognition of significance of person as an individual, his rights on free development and manifestation of his abilities. Respect to dignity and human rights, care about human welfare. Expressed in the Constitution – examples: nobody can be arbitrarily taken his/her life, honour and dignity are untouchable, etc.

Two major types of legal systems. Common Law European Continental Law. Anglo-American legal system. Civil law system. Case-law system Code-law system. Common Law.

Doctrine of precedent

The key is the courts’ decisions in actual cases that have been litigated in the past.

Stare decisis – lat. “Let the decision stand”

Continental Law

1. Code

The central source of law that is recognized as authoritative are codifications in a constitution or statute passed by legislature, to amend a code. Only legislative enactments are considered legally binding.

Common Law

2. The trial by jury

Jury selection

Guilty/not guilty – by jury

Material part is explained by a judge

Continental Law

2. The trial by judge/judges

Judge/judges make/s decisions

A number of judges depends on a case

Common Law

3. Distinction between “law” and “equity”

Occurs only in civil cases, not in criminal

The result of historical circumstances in England

Fundamental principles of Law

To secure political power to people. People are the only source of state power. Power can be realized directly and through representatives.

Development, protection of propertyship and equity of its subjects is an important condition of establishment of material and technical basis of the state.

Democratism means legal establishment of such human rights and freedoms which in practice provide the right to participate in solution of state affairs in connection with the wide range of civil rights and freedoms.

Internationalism is recognition and provision of all nations and peoples with the right of judicial and factual equity on their political, economic and cultural development.

Sources of Law.

Sources of Law are an aggregate of social factors creating the law (state classes, ideology, etc.), forms of expression of state’s will which are necessary to give it the character of law (law, decree, resolution, etc.)

Sources of law are only acts having legal significance;

all other acts such as declarations, statements, and appeals are not considered as sources.

Constitution. Constitutional Laws. Laws.Decrees of the President. Governmental acts. Normative-legal acts of ministries, agencies, departments, committees. Decisions of local legislative and executive bodies.

Lecture 2. Constitutional Law

Constitutional Law is an aggregate of legal norms regulating public relations which contain fundamentals of state and public structure of the Republic of Kazakhstan, interrelation of state and individual; structure and principles of organizing activity of political system of society, fundamentals of voting system, mechanism of carrying out of state power belonging to people

Fundamentals of public structure

Public structure is a political, economic system and social fundamentals of state. Political system of society covers state and public organizations which are used by people for carrying out of its power in governing society’s affairs. People realizes power directly or through representatives

Economic system of society includes forms of propertyship and also purposes of public manufacture, principles of product distribution, organization of economic management.

Economics is based on different forms of property.

Equity of all subjects of propertyship is guaranteed.

Social base of a state includes a class structure of society and social groups, will and interests of whom are expressed by a state during the deciding of its tasks, realizing of its functions.

Our state provides equal rights to all citizens, equal opportunities to all public organizations acting in correspondence with legislation.

National state structure is a structure organizing of activity, legal status of a state and its administrative territorial unities, order of their interrelationships.

Republic of Kazakhstan:

Sovereign state with its own leading, independent power

Territorial supremacy

Enters into relations with other states

Its own supreme bodies of state power and government

Draws a unified social and economic politics

The Constitution of Kazakhstan is the highest law of Kazakhstan, as stated in Article 4. The Government of Kazakhstan approved the constitution on 30 August 1995.

Preamble

The preamble of the constitution emphasizes the importance of "freedom, equality and concord" and Kazakhstan's role in the international community.

Section 1, General Provisions

Article 1

Article 1 establishes the state as a secular democracy that values individual "life, rights and freedoms." It outlines social and "political stability, economic development," patriotism, and democracy as the principles upon which the Government serves. This is the first article in which the Parliament is mentioned.

Article 2

Article 2 states that Kazakhstan is a unitary state and the government is presidential. The government has jurisdiction over, and is responsible for, all territory in Kazakhstan. Regional, political divisions, including location of the capital, are left open to lower level legislation. "Republic of Kazakhstan" and "Kazakhstan" are considered one and the same.

Article 3

The government's power is derived from the people and citizens have the right to vote in referendums and free elections. Article 3 establishes provincial government. Representation of the people is a right reserved to the executive and legislative branches. The government is divided between the executive, legislative, and judicial branches. Each branch is prevented from abusing its power by a system of checks and balances. This is the first article to mention constitutional limits on the executive branch.

Article 4

Laws that are in effect include "provisions of the Constitution, the laws corresponding to it, other regulatory legal acts, international treaty and other commitments of the Republic as well as regulatory resolutions of Constitutional Council and the Supreme Court of the Republic." The Constitution is made the highest law. Ratified international treaties supersede national laws and are enforced, except in cases when upon ratification the Parliament recognizes contradictions between treaties and already enacted laws, in which case the treaty will not go into effect until the contradiction has been dealt with through legislation. The government shall publish all laws.

Lecture 3. Law enforcement bodies and Court of the Republic of Kazakhstan.

Organization and activity of law enforcement bodies of the Republic of Kazakhstan. System of law enforcement bodies. Constitutional council of RK, its place in the system of law enforcement bodies, its role, meaning and functions. Prosecutor system of RK. Ministry of the internal affairs. Committee of national security. Notary system. Other law enforcement bodies. Separation functions of law enforcement bodies. Different manuals. Court and justice in the Republic of Kazakhstan. Legal basics of the organization and activity of the court bodies of RK. Place, role and meaning of the court in the system of the state bodies. System of he court in RK: local, region and special courts. Supreme court. Structure of the court. Principles, Justice as the main function of court in RK. Ways of development and improvement the court system in RK.

Lecture 4. Public administration

State management fundamental principles. State as a subject of management. Main characteristics of state, social functions of the state, object of state management. Managing objects nature. Categories and stages of development the science of he theory of state management. Science of state management, its subject and method. Constitutional pronciples of state management. Branch principles of the state management. System, organization and forms of state management. Concept, subject and tasks of system of state management. Structure of the system of state management. Creation and development the system of state management in RK. Stages of reforming the system of state management, Modern state politics. Central, region, and branch management. Regional politics of the state. State control as the organizational structure of the state management. Functional structure of the state management and its legislation. Types of the legal forms of the state management. State management acts.

Lecture 5. Administrative Law

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

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

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

Important feature:

Public relations regulated by Administrative law are built as –

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

Administrative legal relations are divided into:

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

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

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

Sources of Administrative Law:

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

Among: Constitution, Code of administrative offences, etc.

Lecture 6. Civil and family law (4 hours)

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

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

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

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

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

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

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

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

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

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

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

Civil law is a branch of law which regulates:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal entity shall mean an organization which:

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

Is liable for its obligations by its assets;

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

Can be the plaintiff and the defendant in the court;

Has independent balance-sheet or budget;

Has stamp with its name thereon.

Types of legal entities:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following transactions must be entered into in writing:

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

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

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

Lecture 7. Financial law.

Financial law as a complex of legal norms which are regulating social relations in the process of the creation, distribution and use founds of the monetary resources. In the same time financial law is corresponding to other branch of the law. In demarcation the financial law from other neighboring laws should notice the nature of its subject, specialties of the method of legal regulation and the system of financial law. For instance, in Civil law - credit, accounts and insurance.

In Civil law the relations are created on the base of equality of sides. But in financial law the one side of these relations are the state authorities

Subject of financial law is the social relations which are created in the process of making financial activity of the state. This financial activity is concentrated in the creation, distribution and use the monetary resources founds.

• General part. Norms of this part have the significance for all financial relations and they fix the main basics of financial activity of the state, its tasks, forms and methods, they create legal basics of the financial control, the bodies and competence of bodies which are participate in the financial activity.

• Special part. This part mergers norms which are regulate some types of financial relations in the limits of appropriate financial-law institutes. For instance, in the special part are the gropes of norms which are regulating the law relations in the sphere of budget system, ex-budget state founds , state benefits and expenses, state and banking credit, monetary handling and currency regulation.

• The main spring of financial law is Constitution of the Republic of Kazakhstan, where are the basics of legal organization of financial activity of the state in general and by some directions. The most attention constitutional legislation concerns to budget activity, which explains the role of the state budget as the central stage of financial activity.

• No definite spring of the financial law. But among springs of financial law many norms where are norms of other branch of law - constitutional, administrative, civil and others (about local autonomy, banks, enterprise, business activity and others).

• Norms of the financial law are contained in the Decree of President of RK, ordinance, rulings of the Government of RK and acts of the bodies of executive authority and local autonomy.

• Financial-law norms could be contained in the acts of the state authorities (Ministry of finance of RK, National Bank of RK and Tax Committee and others). These acts are regulating financial issues in the limits of appropriate branch or the sphere of management and labor societies or administration of enterprise, or organizations.

The complex of the normative acts where are could be find the norms of the financial law is named a financial legislation or financial law.

Financial-law norms and relationships. The concept and types of financial-law norms Financial relations, its peculiarities and types. Subjects of the financial law. Financial-legal norms (norms of financial law) – rules which are straight made, fixed legal rights and obligations by the state and provided by national measures in the social financial relations, which are appeared in the process of the creation, distribution and use national monetary resources and benefits by the plan. Classification of the financial-legal norms.