SOME
QUESTIONS OF LEGAL REGULATIONS OF LAND ISSUES
IN
THE REPUBLIC OF KAZAKHSTAN
Gulnur Tuleubayeva
Ph.D student of L.N. Gumilyev Eurasian
national university, Kazakhstan
From the standpoint of social stability,
sustained and sustainable development of the land issue is not only the
social-economic, but also special political importance. On this basis,
providing quality and effective legal regulations remains rather urgent task of
legal science and legal policy. The Land law has always occupied a special place
in the law, but in the context of increasing scale of economic turnover of
land, involving land and land rights in the sphere of the market, its socio -
regulatory significance increases. The land legislation of Kazakhstan is
developing quite dynamically. The reforms in the economy, the transition to a
new system of property relations, changes in land turnover led to a need for a
substantial renovation of the entire system of land legislation. During the
years of independence have been accepted the Land Code from November 16, 1990
replaced by the Edict of the President of the Republic of Kazakhstan with the
Effect of Law On Land from December 22, 1995 which in its turn has been
replaced by the Law of the Republic of Kazakhstan On Land from January 24, 2001,
replaced by the Land Code of the Republic of Kazakhstan from June 20, 2003. During the period
of development land on the steps and other important regulations which provide
for significant changes in land area, including more than 100 sub-legal acts of
the land, mediating institutions, and entirely new categories of land law. The
tendency in the dynamics of the land laws
reflect the political and legal will, the conceptual approaches of power on the
land relationships and, ultimately, are
the legal expression of the objective processes in the land sector. The market
land legislation period of independent of Kazakhstan in its development have
already gone through several stages. The basis of division into stages are
conceptual approaches and the functional goal orientation main legal acts on
the key issues of land reforms. Fundamental
political and social-economic foundations of a modern land system and
government regulation of land relations are defined by the Constitution of the
Republic of Kazakhstan on August 30, 1995. [1] At the first stage of
land legislation (1990-1993). Laid the political and legal foundations of the
new land system of Kazakhstan. In the second stage (1993-1995). Legislation was
the beginning of a land market reforms: fixed principles of sustainability and
a market turnover of land use rights, the legal basis of transition to
non-state agricultural commodity on a market basis. The third stage is connected to the Decree on Land, is turning largely
dominant in the legal framework of market land relations. In accordance
with the Constitution of the Republic of Kazakhstan on August 30, 1995, decree
on the land for the first time systematically, with the new market positions
went to legal mediation of land relations. Unfortunately, the establishment of
land rights has not always been consistent and sustained. As a result of the adoption of the Law «About Land» was the beginning of the process of
retreat from a number of market and social principles into land-legal
regulation. This process is not stopped at this, the fifth stage of
development, which begins with the adoption of Land Code of the Republic of
Kazakhstan dated June 20, 2003. [2] This basic legal act does not eliminate the
shortcomings of retreat, and in some aspects, on the contrary, further
weakening the previous parameters of the legal regulation. But overall, if you generalize the results of the
formation and development of land laws, it can be argued that established the
right in his rod toward the legal basis of market land relations. In
this case we can speak about the reception in the Kazakh land and agrarian law
and the provisions of the basic approaches of Eastern European doctrine of
legal security of land reform.
The legal experience in the regulation of
land relations of independence of Kazakhstan since the Soviet period is unique
for several reasons: a) legislative regulation is part of a fundamentally new
political and legal fields, and b) was aimed at transforming a socialist, an
administrative-command, a distribution economy into a market-type c) the
absence of its own historical experience of the legal regulation of land
relations in market conditions, and d) the presence of significant
institutional, social, psychological and administrative barriers to carrying out
market-oriented land and legal policies, and e) an objective necessity of
complicating the land regulation, giving focus and agility land
relations against the backdrop of lack of willingness of law-making and
management for such legal status in the land sector. The Land law of the market
period acquired a new quality of the regulatory and functional: it from a
public law was transformed into a private-public sector law. In land area of the simultaneous enhancement and the
interaction of mandatory (public) and discretionary (private) began in the
legal regulation that is an essential feature of modern land law. The
essence of this tendency reflects the «concept of the interaction of mandatory
and discretionary practices», necessarily imply the presence and flexible
combination of public and private began in the legal regulation, with an
imperative priority method. It allows the
methodologically correct to define the essence of public relations and private
control methods not as competing but rather mutually interacting and
reinforcing the overall regulatory effect. It is in this relationship
and the essential relationships discussed methods of regulation are the
structural basis for modern land law.
Reported trends in the land sector are not always true interpretation.
At the conceptual and normative levels allowed belittling the role of
functional regulatory capacity of the land law, to limit the scope of its
impact. The Concept of Legal Policy of Kazakhstan from September 20, 2002 property relations, market turnover of land has been
withdrawn beyond the limits of land ownership, with the appropriate inclusion
in the sphere of civil law regulation. [3] Specified, not least, was due
to no clear theoretical constructs of exploration with respect to structural
and functional, institutional essence of land law and its place in national
law. The factors and conditions of the market
sector of land law are: the existence of the subject of legal regulation,
self-reliant, particularly in land relations, needs the proper order; the
interest of the state and other subjects of land relations in their management,
development and adoption of special laws, the existence of a codified land law statute,
a special combination of means and methods of legal exposure, meaning the
presence of a unique, unique to this area of the
method of legal regulation, the presence of their own institution to legal
liability. However, the preconditions of the
industry of land rights are not always identified and treated adequately, there
are different approaches. Thus, the emergence of industry land rights in
the Soviet period was associated with the right of exclusive state ownership of
land, that is, statutory ban on the inclusion of land in public circulation.
Ownership, related features can not be the backbone, independent (especially
the sole) factor in shaping the field of law. To
adequately construct theoretical concepts and categories of modern land rights
instead of the traditional design - the subject and method, methodological
importance is the logical structure of object-subject-method. That is,
the original advocates coming to light and identifying the main characteristics
of the object of legal action.
The existence of problems in the field of effective management of land
resources of the republic requires the need to improve not only the regulatory
conditions, but also the mechanism of execution of adopted land-legal,
administrative-legal statutory acts. In particular it
concerns of the zoning as one of the most important functions of management of
land fund. Zoning as one of the major functions of management of land fund is
affect on political, social and economic interests of various levels of
population and the state. The circle of
law relations covered by zoning is not defined. The land legislation has
defined only the most general approaches and principles of regulation are on
the formation stage. Meanwhile in the conditions of an intensification of
economic circulation of the lands, the market of the lands zoning acts as means
of maintenance of scientific validity, an optimality of distribution and a turn
of the lands taking into account natural, nature-climatic, landscape features
of land territories.
Creating a full-fledged legal framework of zoning
is important to properly identify the categorical membership of land according
to their functional and quality characteristics of amending the purpose of
land, land transfer them from one category to another, planning and financing
the land security and remedial actions, thereby promoting improve the structure
and quality of land resources of the country.
Lands zoning in the Republic of Kazakhstan is
realized according with the Land Code of the Republic of Kazakhstan. The
main purpose of zoning is to define the area of land to establish their purpose
and usage. Defined by zoning land use regime target area, review and approval
in the manner provided by law, is binding for
the subjects of land relations. The land zoning held by a decision of local
executive bodies and realized at
the expense of budget funds.
The defining the territory of land with the
establishment of their target usage is based on the principles of the
legislation of the Republic of Kazakhstan regulating the relations between use
and protection of land, mineral resources, forest and water resources,
vegetation and wildlife, as well as architectural and town-planning activity. [4] At land zoning following factors [5] are considered:
the natural and economic conditions, the purpose of the land, the
quality of land, their productivity and assessment, ecological condition of
land, special use of land of different categories, and others.
The zoning of agricultural land is given priority
agricultural lands, particularly the protection of agricultural lands and their
management. Zoning of agricultural land based on principles:
priority of agricultural lands; special protection of farmland; proper use of
agricultural land, compensation for losses of agricultural production in the
seizure of farmland for their use for purposes not related to agriculture. [6]
Zoning of an agricultural purpose are considered:
agro climatic conditions; soils and vegetation; a qualitative condition of
agricultural grounds; specialization of agricultural production; special
conditions of using the land. Depending on concrete local conditions can be
considered other factors, influencing to character of use of the lands. Defined
the territories of an agricultural purpose with a usual use mode for
agricultural managing. The basis for zoning of agricultural land is a
natural-agricultural zoning with the release of natural zones, subzones, and
districts. As part of agricultural land set zone (area) with the
specific conditions of land use are identified in the process of zoning land
for industry, transport, communications, defense, lands of specially protected
natural areas, lands of water fund and other non-agricultural use, without
exception, these areas have agricultural producers.
In addition, the reserved area of agricultural
land required for the development of human settlements, natural reserve fund
and other purposes not related to agricultural production. The
structure of the lands of residential suburbs of cities is formed, the order
and using of these lands is defined. On the base on
the land zoning of supply, forestry, water resources, industry, transport and
other non-agricultural use of land are identified, possible to transfer for
agriculture. Lands
zoning of a stock, forest, water fund, the industry, transport and other not
come to light the lands areas, possible to transfer for needs.
Modern land relations are still characterized by the presence of a
number of factors, negative direction, although gradually being general
economic, regulatory, organizational, ideological, socio-psychological
prerequisites of a new land legal order. The law building suffers from inconsistencies,
contradictions. Many market projects and the
laws do not account to the extent necessary land security imperatives and
demands guarantees for their implementation are not adequately protected. In
the public mind is still dominated by the conviction of without lose, Infinity
Land. The land ownership has not yet become a symbol of integrity and special
protection. The President of Kazakhstan, in 2002 noted the existence of the
legal confusion in the field of land relations. Speaking
of drastic measures to combat corruption, he noted the need for clearly defined
mechanisms of public control over activities of state bodies in three
directions - use of mineral resources, land relation and privatization. [7,
p.158-159] This - the official confirmation at the highest level of imperious
presence of serious problems in the land sector should be fully thought out
action. For the effectiveness of regulatory -
legal regulation of land relations important question is: a) adequately reflect
the characteristics of the land law, as the object of legal exposure;
interaction rules of civil and land legislation in regulating the land market
turnover: b) The legislative continuity and consistency in securing and
guaranteeing the system of property rights of owners and users, and c)
structural and functional coherence of institutions and norms of the land
legislation of different hierarchical levels, and d) the mechanism of action of
the land law, organizational and institutional guarantees for the
implementation of land laws.
As part of the managerial aspects of land tenure is
required: a) strengthening the role of public administration with a
simultaneous change in the traditional and the attraction of new forms and
methods of exposure, and b) a clear distinction between the spheres, areas of
private and public forms and methods of streamlining land tenure, and c)
achieving a functional balance between interaction of structures of governance.
They are focused on the implementation of functionally-oriented, social purpose
of state regulation, organizational and structural areas of implementation to
ensure land rights, which viewed the phenomenon of «structural split»
functions. Their decision will: remove the contradictions and optimal distribution
of functions and powers between the administrative structures, to review a
conceptual legal status, competence Agency for Land Management. The emerging
practice of land relations, shows the need to strengthen the functions of
representative and executive bodies of lower rank. In terms of prevention of
corruption and rule of law in the land sector and the actual formation of the
institutional and regulatory support activities of public institutions,
including local authorities. No less important is the formation of independent
local systems of control and inspection of structures with appropriate
personnel and logistics, covering all areas and levels of land relations.
REFERENCES:
1. Constitution of the
Republic of Kazakhstan of August 30,1995,
as amended.
2. Land Code of the
Republic of Kazakhstan ¹442-II of June 20, 2003.
3. The concept of legal policy of the Republic of Kazakhstan: Approved by
the Decree of the President of the Republic of Kazakhstan from September 20,
2002. ¹ 949 // SAPP. - 2002. - ¹ 31.
4.
Methodical instructions for the development of
regional (provincial) zoning schemes (Astana, 2000) Edited by B.S. Ospanov / IS
PARAGRAPH.
5.
Methodological instructions for the development of
district zoning schemes (approved by the order of the Chairman of Agency of the
Republic of Kazakhstan on Management of land resources from December 29, 2004 ¹
107- Ï).
Compiled under the guidance of B.S Ospanov / IS PARAGRAPH.
6.
«Environmental standards for rural areas» (approved
by the order of the Minister of Environmental Protection of the Republic of
Kazakhstan from February 21, 2005 ¹ 62-p)
7. State Agricultural and Food Program of the Republic of Kazakhstan for
2003-2005: Approved by the Decree of the President of the Republic of Kazakhstan
from June 5, 2002. ¹ 889. - Astana, 2002. - 304 pp. Business Review, April 29,
2005.