Право/9.Гражданское право

Akhtyshkhan Y., master of the legal sciences

Karaganda economical university of Kazpotrebsoyuz, Kazakhstan

Concept and features of legal regulation of the external economic transactions on the civil legislation of the Republic of Kazakhstan

In the modern civil legislation of the Republic of Kazakhstan there are no the norms exposing concept and signs of the external economic transactions. The earlier existing legislation didn't contain legal definition. So, in Bases of the civil legislation of the USSR and the republics of 1991 the term "external economic transaction" without its legislative explanation was used. The concept "foreign trade transactions" was applied by the civil code of KazSSR.

The civil code of the Republic of Kazakhstan (further in the text - CC) only twice uses the phrase of "the external economic transaction", establishing the obligatory requirement to its invalidity of the transaction. Also by item 2 of Art. 1104 of CC it is regulated that the external economic transaction, at least one of which participants is the legal entity of the Republic of Kazakhstan or the citizen of the Republic of Kazakhstan, is made, irrespective of a transaction place, in writing.

The phrase "external economic transactions" consists of concept of transactions, on the basis of Art. 147 of CC which mean actions of citizens and the legal entities, directed on establishment, change or the termination of the civil rights and duties.

It is necessary to define, what transactions belong to the external economic. Any concept consists of the specific signs inherent in this term and explaining its essence, allowing distinguishing it from other concepts. "Signs of the external economic transaction can conditionally be divided into two types: the obligatory signs qualifying the transaction as external economic, and facultative signs which usually (but not always) are peculiar to the external economic transaction". [13, p. 33].

Due to the lack of legislative fixing of concept of "the external economic transaction" we will address to the jurisprudence doctrine where authors bring out required by us concept from the corresponding signs. However from variety of the developed ways of definition of this term we will pay attention on several main directions allocated in the doctoral dissertation of Kanashevsky VA. [13, p. 33].

"Representatives of one direction the definition of the external economic transaction connect with production of export-import transactions when export of goods, works or services abroad or their import to the country takes place. In particular, Cheltsov Yu. refers to number of signs of the foreign trade transaction:

1) its associativity to the act of import or export of goods;

2) belonging of contractors of the transaction to the economic sphere of the various states.

Also Lunts L.A. noted that the foreign trade transactions refer to such, "in which at least one of the parties is the foreigner (the foreign citizen or the foreign legal entity), and content of the transaction is operations on import from abroad of goods or on export of goods abroad or any subsidiary operations connected with export or import of goods. Here, therefore, concern, first of all, the contract of purchase and sale of the goods which are subject to import from abroad or export abroad, and also connected with commodity export or import of the transaction of the contract, the commission, transportation, loads, the credit and accounting relations, etc.”

Authors of other direction take for a basis a location of the commercial enterprises of the parties in the different states. According to Zykin I.S. contracts belong to the external economic concern “made during implementation of business activity contracts between the persons which commercial enterprises are in the different states». The term "commercial enterprise of the party" comes from international treaties, in particular, from the Convention of the UN on contracts of the international purchase and sale of goods of 1980 (further in the text - the Vienna convention of 1980), UNIDRUA Convention (developed by the International institute of unification of the private law, having the status of the intergovernmental organization) about the international financial leasing of 1988. It designates not a subject of law, but a place of primary activity of the party, a constant place of implementation of business operations (place of business). Such approach adhere to Anufrieva L.P. Boguslavsky M. M., Volvach of Ya.V. Getman-Pavlova I.V. Dmitrieva G. K. Erpyleva N. Yu. Zvekov V.P., etc.

The opinion of supporters of the third direction is reduced to definition of the external economic transaction by the instruction on a various nationality (the state belonging) making its contractors. So, Musin V.A. considers that the foreign trade transactions - "the transactions made for commercial purposes by persons of various state belonging and attracting emergence, change or the termination of the civil rights and the duties connected with creation, use or realization of material benefits or other results of human activity". And Yeliseyev I.V. allocates two signs of the foreign trade contracts - various state belonging and their commercial character" [13, p. 34-36]. Kanashevsky VA. taking into account the legislation of the Russian Federation, agrees with the point of view of Zykin I.S. and his supporters that the main sign of the external economic transaction is finding of the commercial enterprises of the parties in the different states [13, p.37]. However Kazakhstan, unlike Russia, isn't the participant of the above-named international agreements in which the concept "commercial enterprise of the party" is applied. And the civil legislation of the Republic of Kazakhstan doesn't contain such definition. Therefore for concept disclosure "the external economic transaction" on the civil legislation of the Republic of Kazakhstan the sign of finding of "the commercial enterprises of the parties" in the different states can't be assumed as a basis for the characteristic of such transactions.

Besides these international contracts regulate separate types of obligations, instead of all external economic transactions in their set therefore the question of an admissibility of definition of the concept "external economic transaction" by the refer to them remains open [13, page 37]. The law of the Russian Federation "About the international commercial arbitration" 1993 (item 2 of Art. 1) says that disputes can be transferred to the international commercial arbitration from the contractual and other civil relations, arising at implementation of the foreign trade and other types of the international economic relations if the commercial enterprise at least one of the parties is abroad [13, page 37] by agreement of the parties. According to item 4 of Art. 6 of the Law of the Republic of Kazakhstan "About the international commercial arbitration" 2004, to the arbitration the disputes following from civil contracts between individuals, commercial and other organizations if at least one of the parties is the nonresident of the Republic of Kazakhstan by agreement of the parties can be referred. That is jurisdiction of disputes to arbitration in Kazakhstan is determined by other sign - residences. At the same time, according to Art. 1113 of CC, to the contract in the absence of the agreement of the parties the right of the country where it is founded, takes place a residence or the main place of activity is applied, the party which carries out the execution having crucial importance for the content of the contract.

Besides, if to define the term "commercial enterprise of the party" according to the civil legislation of the Republic of Kazakhstan, we come to the following. In CC the term "enterprise" is used in two meanings: as the subject of the civil rights - the state enterprise (one of forms of the commercial organization, Art. 34), and as object of the civil rights - the property complex used for implementation of business activity (Art. 119). It means that in specific meanings of "the main place of activity of the party" this term to the civil legislation of the Republic of Kazakhstan isn't known and is applied only in the theory to qualification of the external economic transactions [13, page 42].

"It is thought that the sign of the external economic transactions allocated by representatives of the first and third directions, about belongings of contractors of the transaction to the economic sphere of the various states, execution of such transactions by persons of various state belonging, in certain cases can be incorrect.

The state belonging of the parties of the external economic transactions is various, certainly, in most cases, except for some situations. For example, the legal entity created and registered in the territory of the Republic of Kazakhstan, can open the branches and representations in the territory of other country (i.e. the commercial enterprises). The contract of this branch signed, by the way, on behalf of main legal entity (i.e. the party of the transaction is the parent organization, instead of branch) with other Kazakhstan organization, is external economic though the parties have belonging to one state and by the legislation of the Republic of Kazakhstan both parties are residents of Kazakhstan.

In other case, the contract between branch or representation of the foreign legal entity, concluded on the basis of the power of attorney issued by him, and the Kazakhstan organization isn't the external economic transaction in spite of the fact that the parties belong to the different states provided that the goods won't move through border" [13, page 41-42]. Besides, the Law "About the State Registration of Legal Entities and Registration of Branches and Representations" of 1995 provides possibility of registration in the territory of the Republic of Kazakhstan not only branches, but also legal entities with foreign participation (Art. 6-1,6). Owing to item 7 of Art. 3 of CC "foreign physical and legal entities, and also stateless persons have the right to get the same rights and are obliged to carry out the same duties what are provided by the civil legislation for citizens and legal entities of the Republic of Kazakhstan if acts didn't provide other". In this situation, proceeding from sense of Art. 1084 of CC about an applicable law to civil legal relations with participation of foreign citizens or foreign legal entities or complicated other foreign element, it isn't necessary to identify two categories "external economic transaction" and "transaction complicated by a foreign element" [13, page 42]. Therefore opinion of Korniychuk G. A. and Pelishenko A.A is not absolutely exact.. : "in law-enforcement practice there was an idea of the external economic transaction as about any civil transaction carrying enterprise character and complicated by a foreign element" [14, page 6]

On the basis of the above it is necessary to recognize that the sign of various state belonging of the parties is facultative. In this connection, similar to Art. 1211 of CC of the Russian Federation, will be correct to exclude from a context of Art. 1113 of CC of the word "where it is founded" the contract party as the transaction can be concluded on behalf of the legal entity by the branch located in the territory of the foreign state, that qualifying the transaction as external economic. Besides, on the basis of Art. 43 of CC the branch is located out of the location of the legal entity and carries out everything or part of his functions. However the branch, as well as representation, aren't independent subjects of the civil rights and duties as aren't legal entities but only separate divisions of the legal entity. They act under the provisions approved by the legal entity, and their heads - by power of attorney. The branch concludes the bargain on behalf of parent organization which admits the contract party. "In this regard it is possible to conclude that the criterion of location of the commercial enterprises of the parties in the territory of the various states is so unsuccessful, as refer to a various nationality of the parties. It is capable to generate disputes on right ability" [13, page 44]. If we address to texts of the international transport conventions, the area of their application is covered by an arrangement in the various countries of a place of departure and the destination of freights.

So, Art. 1 of the Convention on the contract of the international transportation of goods of 1956 (further in the text - KDPG) which Kazakhstan joined in 1995, is specified that "The convention is applied to any contract of road transportation of goods for remuneration by means of cars when specified in the contract an acceptance place to transportation of freight and a place provided for delivery of freight, are in the territory of two various countries from which, at least, one is participating in the Convention". Also this norm places emphasis that "application of the Convention doesn't depend on a residence and a nationality of the parties signing the contract".

According to Art. 2 of provision of the Convention of the UN about sea transportation of freights of 1978, ratified by Kazakhstan in 2008, are applied to all contracts of sea transportation between two various states, irrespective of a national identity of a vessel, a carrier, the consignor, the consignee or any other interested person. That is the Warsaw convention for standardization of some rules concerning the international air transport of 1929, to the Protocol of 1955 on amendments which Kazakhstan joined in 2001, any transportation at which the place of departure and the destination are located in the territory of two states participating in the Convention" is called as "the international transportation". Speaking about the concept "external economic transaction", it is necessary to tell that in the doctrine there are also other categories, such as "the international commercial transaction", "the international commercial contract", "the international commercial transaction", "the inter territorial transaction", "the transaction of the international character". According to the civil legislation of the Republic of Kazakhstan (Art. 1084 of CC) all of them are the transactions complicated by a foreign element which number includes also the external economic. One more sign qualifying the transaction as external economic is its conclusion during business activity.

According to Art. 10 of CC business is an initiative activity of citizens and legal entities, irrespective of the form of ownership, directed on receiving net income by satisfaction of demand for goods (works, services), based on the right of a private property (private business) or on the right of economic maintaining or operational management of the state enterprise (the state business). Business activity is carried out from a name, for risk and under property responsibility of the businessman.

Thereby the external economic transactions, even judging by their name, are delimited from the transactions, having by the appointment satisfaction of personal, household interests, the enterprise orientation. Besides, proceeding from terminology of CC (Art. 34), the commercial enterprises create the legal entities pursuing derivation of an income as a main objective of the activity (the commercial organization). So, the Vienna convention of 1980 isn't applied to sale of goods which are acquired for personal, family or house use (the item and Art. 2).

Donation contracts, charity, public contracts also aren't a part of the external economic transactions. It should be noted that in CC of the Russian Federation in the relations between the commercial organizations donation with cost more than three thousand rubles (Art. 575) isn't allowed. While the Civil Code of the Republic of Kazakhstan doesn't consider such prohibition (Art. 509).

To facultative signs of the external economic transaction Kanashevsky VA. refers:

1 . Movement of goods through customs border (with application of the customs legislation).

In the case described earlier need of movement of goods through frontier was a qualifying sign of the external economic transaction. So, the contract between the branch of the foreign legal entity located in the territory of the Republic of Kazakhstan, and the Kazakhstan organization isn't the external economic transaction, because the parties are in the territory of one state. But if the goods are delivered abroad or from abroad, the transaction becomes external economic.

So, MKAS of Russia qualified the contracts signed by firms, being in the territory of one state of (Austria), as the foreign trade transactions as their subject was goods delivery from abroad: the goods were shipped from Russia [13, page 50].

However in literature the example when the Russian organization signed the contract for supply of coal with foreign firm is given. Thus shipment of coal was made to the third organization which was in Russia with which the foreign firm consisted in the contractual relations. The arbitration court qualified the contract between the Russian and foreign firms as external economic in spite of the fact that crossing by goods of border didn't happen [2, page 49]. Therefore the external economic transactions are most often interfaced to movement of goods through border, but the specified case allows to refer this sign to the facultative.

2. Various state belonging of the parties of the external economic transaction. The external economic contract, as a rule, is concluded with foreign partners. Belonging of the person to any state corresponds to the main place of its activity.

However besides the contract between branch of the foreign legal entity in the Republic of Kazakhstan and the Kazakhstan organization isn't the external economic transaction in spite of the fact that the parties belong to the different states. Thus, this sign does not always characterize the transaction as the external economic.

3. Foreign currency. In the external economic transactions calculations can be made in foreign for one of the parties currency. If the parties provide in the contract payment in the international settlement (monetary) units (for example - in euro), the sign of calculation by foreign currency for the external economic transaction is facultative.

In the majority concluded by the Kazakhstan participants of foreign economic activity of export-import contracts, in contracts of the international transportation, in loan agreements with foreign creditors, obligations of the parties are expressed in currency which for the Kazakhstan party is foreign. Respectively, there are problems of translation of the obligation expressed in foreign currency, in national currency, and also a problem of protection of interests of the parties from currency risks in connection with change of cost of national currency. It, in turn, involves emergence in the contract of the special section - "The currency reservation", the liability containing a binding to any stable currency, international money (settlement) unit (euro, etc.).

4. Specifics of consideration of the disputes following from the external economic transactions. Disputes from the external economic transactions can conditionally be divided into two categories:

a) private-law disputes - with the contractor under the contract (the foreign partner);

b) public disputes with the supervisory authorities, connected with violation (alleged violation) of customs, tax, currency legislation.

It is a facultative sign as disputes between the parties of the transaction cannot arise [13, page 51]. Unlike public disputes which are considered by only the state courts, private-law disputes can be by agreement of the parties transferred from the state courts to the international commercial arbitration (in Russia - the state arbitration courts, in Kazakhstan the arbitration is non-state body). Dispute can be considered as in Kazakhstan, and abroad.

5. Specific mode of regulation of the external economic transaction carrying civil, and at the same time the international private character.

This mode is shown in regulation methods - material and conflict.

The external economic transactions are regulated by international treaties if the party of the contract belongs to the state which is the participant of a certain international treaty. In the absence of the international treaty the external economic contract is regulated by the right of the country chosen by the agreement of the parties, otherwise the right of the country where it is founded, takes place a residence or the main place of activity, the party executing the contract, and other conflict bindings for definition of the right applicable to the contract are provided by CC. There are also international trade customs (INCOTERMS) and usage.

The specific circle of the sources regulating the transaction, belongs to facultative signs as at execution of the obligations of the party can be guided only by provisions of the certain contract, without addressing to provisions of any regulations.

Specific weight of the external economic transactions is made, certainly, by contracts of the international purchase and sale. But there are also contracts of rendering the external economic services. In a context of Art. 683 of CC services is a execution of certain actions or implementation of a certain activity.

We can agree with opinion of the domestic author Moroz S. P. that "there are two main signs of the external economic transaction:

1) special subject structure (the parties are the persons being in the territory of the various states);

2) special object structure (object is the goods being abroad, the services rendered outside the territory of the state, or foreign investments, etc.). For recognition of the transaction as external economic these signs have to be applied in aggregate" [15, page 233]. According to the known Kazakhstan authors Suleymenov M.K. and Basin Yu.G. "by the nature the external economic transaction does not differ from the usual civil legal transaction. Any civil contract can be external economic. The only feature of the last one is that the parties of the contract are in the different countries.

The external economic transaction can be defined as the civil transaction establishing, changing or terminating the legal relationship which subjects are in the different countries" [16, page 461]. However this definition doesn't cover that fact that as object of such legal relationship can act goods delivery abroad, with location of the parties in one state. So, we can make a conclusion that by the civil legislation of the Republic Kazakhstan the external economic transactions are actions of citizens and legal entities made within business activity, which main place of activity is in the different states, or interfaced to movement of goods through frontier and directed on establishment, change or the termination of the civil rights and duties.

The list of the used literature

1. Bases of the civil legislation of the USSR and republics of 1991.

2. Civil Code of KazSSR.

3. Civil Code of the Republic of Kazakhstan.

4. Civil Code of the Russian Federation.

5. Law of the Republic of Kazakhstan “About international commercial arbitration” 2004.

6. Law of the Russian Federation “About international arbitration” 1993.

7. Law “About state registration of legal entities and registration of branches and representations” 1995.

8. The Warsaw convention for standardization of some rules concerning the international air transport , 1929.

9. Convention on the contract of the international transportation of goods, 1956.

10. Convention of the UN about sea transportation of freights,1978.

11. The Vienna convention of the UN on contracts of the international purchase and sale of goods, 1980.

12. Convention of UNIDRUA on the international financial leasing, 1988.

13. Kanashevskiy V.A. External economic transactions; main regulators, their correlation and interaction: dis. Doctor of Law – Moscow, 2009.

14. Korniychuk G.A., Pelishenko A.A. Export contracts. – Moscow, 2008.

15. Moroz S.P. Business law. Almaty, 2009.

16. Suleimenov M.K., Basin Yu.G. Civil law, Almaty, 2004.