LEGAL EXPERIENCE IN THE REGULATION OF LAND RELATIONS IN THE REPUBLIC OF KAZAKHSTAN

 

Gulnur Tuleubayeva

Ph.D student of L.N. Gumilyev Eurasian national university, Kazakhstan

 

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the President of the Republic of Kazakhstan with the Effect of Law On Land from December 22, 1995 which in its turn has been replaced by the Law of the Republic of Kazakhstan On Land from January 24, 2001, replaced by the Land Code of the Republic of Kazakhstan from June 20, 2003.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.

The legal experience in the regulation of land relations of independence of Kazakhstan since the Soviet period is unique for several reasons: the legislative regulation is part of a fundamentally new political and legal fields; it was aimed at transforming a socialist, an administrative-command, a distribution economy into a market-type; the absence of its own historical experience of the legal regulation of land relations in market conditions; the presence of significant institutional, social, psychological and administrative barriers to carrying out market-oriented land and legal policies; the 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.

The Concept of Legal Policy of Kazakhstan from September 20, 2002 a property relation, 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 cannot 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.

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. [4] 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 questions are: 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; the legislative continuity and consistency in securing and guaranteeing the system of property rights of owners and users; structural and functional coherence of institutions and norms of the land legislation of different hierarchical levels; the mechanism of action of the land law, organizational and institutional guarantees for the implementation of land laws.

The value of LC as the principal, the act is codified in the fact that the correctness of his general approach of largely determines the proper orientation, content, and ultimately, the legal level of land by-laws. What is important is the assessment of LC in terms of completeness of coverage of the subject of legal regulation. In the result of  the content and structure of land laws in them were found the following costs, disadvantages: poor social orientation of the land laws, lack of publicly-transparent mechanism for empowerment and land redistribution, the presence of departures from generally accepted principles of closure, the transformation of property rights, lack of clearly defined legal criteria for the detection of public interests in land relations; excessive appeal to administrative remedies under the restriction, termination of ownership rights and implementation of public interest, the presence of the legal feasibility of corrupt interests under the guise of providing public land and legal interest; underdevelopment mechanism of public control over transparency, legitimacy and fairness of administrative acts of the executive agencies and officials; not land security  developed of land use and environmental requirements, taking into account market conditions, uncertainty in the size of the economic effect of the introduction of private ownership of agricultural land. Like the previous land-legal acts, LC contains many reference rules on very important matters of principle, which predetermines the nature and direction of land relations. As a result, the problem of interaction, exact laws.

The law of Kazakhstan substantially revised the system of property rights to land. Liquidated or changed the conditions of granting and operation of certain types of property rights to land. As a result, the system of property rights to the land ceased to be balanced, consisting of the same socially relevant and accessible forms of owning land. So, at one time lifting the sublease of agricultural land has caused controversy and mixed reactions among the members of parliament.

Observed non-economic regulatory imposition of private property rights to land at the expense of other forms of possession of the land, amid the lack of necessary legal, organizational conditions and guarantees for the realization and protection of private ownership of land. The institution of private ownership of agricultural land does not become a real regulator. In the first, he earned only in certain regions. In the second, in its present form the mechanism of acquisition of private land ownership in this category is not focused on the development of the agricultural sector. For the overwhelming majority of agricultural land acquisition sizes were unfeasible or unprofitable. Insignificance of the difference between the discounted redemption value and the normal and the restrictions that accompany the acquisition of the discount made it not particularly attractive. At the same governorates showed no interest in selling discounted land. Land market, earned mainly in suburban areas of the Southern Region and the city of Astana. This indicates that the lands acquired by a private property largely for the purpose of commercial agricultural production. Acquisition of land is often misused, if any, remain without engaging in economic circulation. Efforts are being made to change the purpose of land using different schemes of their withdrawal from the agricultural land. In particular, land transferred into the reserve land as unused, and then provide the other categorical affiliation with any other end use. That is, under the guise of unused land included in the reserve lands, there are already provided for any other purpose. The Law allowed the executive bodies and officials to create a very profitable corruption scheme.

Property interest is a substance that characterizes the essence of the land relations. The law of Kazakhstan contains enough concretized variants acquisition of agricultural land in private ownership: the acquisition of reduced regulatory costs, with the use of installment payment to the auction acquisitions at market value. The most important set of issues associated with land sales market remained outstanding as at the level of granule cells, and at the level of secondary legislation.

The given legal situation increases the likelihood of corruption in the process of disposition and privatization of agricultural land fund. Under the guise of protection and realization of public interests may be inconsistent in guaranteeing the full rights and property interests of the owner of the land.  It reveals the social and unjust, and therefore methodologically flawed regulatory design: «Ensuring the public interest through the infringement of private interest». Forgotten that any public interest ultimately serves the embodiment of private interest. The law viewed the lack of consistency to the principles of private property. The law of Kazakhstan on the one hand, substantially expanded the rights of private property, on the other - much weakened guarantee its effective functioning and protection. "Truncated" structure of private ownership dilutes the essence of property - the possibility of disposal of the subject property. It is not consistent with the right to fair compensation.

Consistent application of market mechanisms, with the exception of constraints of a social orientation should be identified as structural basis of, modification and termination of private property rights and private land.

The project of plan land regulation should be based on decision methodological problem of detection and fixing of the conceptual and theoretical law and legal interaction model methods of legal regulation. Based on the general laws of legal mediation of market relations is acceptable the following approach: a method of a private law regulation in the sphere of land relations must be present to the extent to which it does not infringe on the fundamentals of the land system, the public interests of the subjects of land relations, the method of public law regulation may mediate land relationship to the extent that does not violate the essence of a private mediation of land relations, its market, property-oriented. Organizational conditions for the conversion of the legal possibility into reality right.

At the present stage of development of land law have neither the one nor the other. The current land law avoids the consistent application of a private method of regulation. Simultaneously, there is no meaningful public regulation. Many of the contradictions, the reasons for the reduction of social, regulatory, efficiency of land laws, are connected with the problem unresolved.

Under the current legislation, was shown statutory definition of prices prevailed not socio-economic and purely administrative approach. Meanwhile, the task of the legislator should be to establish a flexible, differentiated system of prices and conditions, taking into account all relevant factors. The system of payments for the land needs to be reviewed through the issue of implementation of land rights. Based on the analysis of the principles and general rules on payment for land is proposed: introduce only auction procedure for selling land in high demand; the norm on the free provision of land for private housing to the social, your address, with simultaneous determination of the application, i.e. clearly defined mechanism for implementation; provide a one-time free of charge to citizens of Kazakhstan of land for agricultural production within certain norms of the special land fund; revise the size of concessional land prices to the downside, the legal regime and the conditions for admission to a market turnover of land provided at a discounted price (or ) in installments; installed in the system and amount of payments equal opportunities for owners and tenants of land; the sale of the tenant leased them land in the property, take into account the amount of its payments for the acquisition of right of lease and sale of lease rights; with respect to aliens provide higher rates of payment for land (rent); increase the compensation payments for the purpose of land by reviewing the system of accumulation and disbursement of payments for land. The concept of «land» directly related quantitative-qualitative and functional characteristics of the land trust as an object of rights, the spatial (horizontal and vertical), the limits of land rights. Anglo-Saxon and Continental systems of law in determining the scope of rights and the limits of their action in relation to land use fundamentally different approaches: the first of them the right to mineral resources is inextricably linked to land rights is an integral part of the second-these rights are separated from each other. The design of the land in Kazakhstan's legislation is based on the second approach. Under this approach, art. 42 LK limits of rights to land limit the surface soil layer. Statutory definitions of land (art.12 LK), the spatial limits of the land rights (art.42 LK) does not reflect the actual, cost due to the limits of the rights to the land. The vertical limits of distribution rights to land are limited to surface soil layer, which is not universal, inherent in all land property. Therefore, when such design problems: the delimitation of land boundaries of the subsoil, the division of land and mineral resources, and determining the spatial limits of the rights to the land. Should enshrine the principle of the spatial extent of land rights on the purpose and type of activity on the land. The land owner should be allocated just enough space limits, as necessary to ensure the functionality of the land, in accordance with its purpose and intended it concrete form of activity.

As part of the managerial aspects of land tenure is required: strengthening the role of public administration with a simultaneous change in the traditional and the attraction of new forms and methods of exposure, clear distinction between the spheres, areas of private and public forms and methods of streamlining land tenure, and 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.

In general, further work is needed to further improve the system of land legislation of Kazakhstan. The changes are required  additions to the LC  and other acts or the adoption of special regulations: the structure and certain categories of land resources, on the auction form of granting land rights, on turnover of agricultural lands, the preservation and reproduction of soil, holding land security , remediation, on the order, grounds and the changing purpose of land on the initiative of property owners and land users, to ensure full compensation, including lost profit and moral damage to the land sector, to differentiate the limits of land rights, their legal regimes, depending on the functional-earmarked land and its relations with other objects, to improve the system and guarantee the protection of property rights to land: property rights and other obligations of the state, accompanying the process of reducing or eliminating land rights, safeguards and remedies of land rights, the right to re-acquire land rights, mandatory pre-Law confirmation of the inevitability of loss or termination of land rights in the public interest; account the will of the owners and land users in the event of termination or loss of their land rights in the public interest, to improve the structural composition of land offenses and the system of legal sanctions, taking into account market realities, to simplify procedures for the implementation of land rights.

 

References

1.                     Constitution of the Republic of Kazakhstan of August 30, 1995, as amended. / IS PARAGRAPH.

2.                     Land Code of the Republic of Kazakhstan ¹442-II of June 20, 2003. / IS PARAGRAPH.

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.                     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. / IS PARAGRAPH.