Baimbetov Nurjan Serikovich
PhD, Associate Professor
Al-Farabi Kazakh National University, Almaty, Kazakhstan
Law Faculty
Prospects for the development of the national legislation of RK on the
use and conservation of resources.
Аннотация. В статье
рассматриваются некоторые положения находящего на стадии разработки
проекта Кодекса«О недрах и недропользовании» Республики
Казахстан. Эффективная организация
законотворческих работ, по систематизации норм законодательства Казахстана в
сфере недропользованияможет положительно сказаться на качестве деятельности в
области недропользования.важно отметить, что кодификация той или иной отрасли
права широко распространено в законодательной практике зарубежных стран.
Выделение горного законодательства в отдельную отрасль, способствует в будущем
устойчивому росту инвестиций в сферу недропользования. Перспектива, связанная
с принятием Кодекса «О недрах и недропользования»,
позволит улучшить взаимоотношения с
государствами-партнерами Казахстана.
Ключевые слова: недра, законодательство, кодификация, принципы
недропользования, налоговый режим.
Annotation: In this article, the author writes about the provisionsunder developmentof CodeonSubsoiland Subsoil Use RK.Effective
organization oflegislative workon thesystematizationof the legislationof
Kazakhstan in thesphere of subsoil usecanhave a positive impacton the quality
ofactivities in the fieldof subsoil use.Important to notethat the
codificationof a particularbranch of lawis widespreadin the
legislativepracticeof foreign countries.Allocation ofmining legislationin a
separatesector forsustainable growthin the futureinvestmentin the mineral
resources.The prospectof the adoption ofthe Code"On
Subsoiland Subsoil Use", will improve
therelationship with thepartner countriesof Kazakhstan.
Keywords: subsoil,law,
codification, the principles of subsoil use,tax regime.
The
current law "On Subsoil and Subsoil Use" of RK was adopted on June
24, 2010. Since then, many steps taken by the legislator in the way of
improving the legislation on mineral resources. The basic principles of the Law
"On Subsoil and Subsoil Use" RK, based on the Constitution of the RK,
but it should be noted that it is hopelessly outdated in all respects as there
were legal, that does not fall under the jurisdiction of the Act, which arose
on the basis of a new integration process and a new economic structure of
society of the country.
It should
also be noted that the new draft of the Code on Subsoil and Subsoil Use of RK
is not a copy of the Law "On Subsoil and Subsoil Use, as there were
provisions to simplify the administrative part of the subsoil in order to
attract new investments, which are still found expression only in scientific
researches Kazakhstan scientists.
In accordance with
the Law "On Subsoil and Subsoil Use" of the state subsoil fund
includes all minerals, in the territory of RK, the legal regulation of
relations in the field of subsoil use based on the following principles:
1. rational,
comprehensive and safe use of mineral resources;
2. Conservation
of Mineral Resources and the Environment;
3. Publicity
conduct mining operations;
4. Payment
for subsoil use.
However, some experts doubt
the new code, the criticism is based on the rejection of the principle of
rational and comprehensive utilization of mineral resources. In this case, in
our opinion, there is a contradiction, since one of the approaches on the ground,
which is developing a code of Subsoil is: unconditional priority of
environmental safety, industrial safety and protection of mineral resources,
which is to be implemented in the adoption and implementation of any programs,
projects, plans and decisions related to mining and oil production, taking into
account the cross-border nature of the effects (and effects) on the environment
and humans, and the process is considered as a complex subsurface
relationships, including environmental issues, land use.
Accordingly, guided by the
objective - the use of mineral resources for the common good, the Code on
Subsoil and Subsoil Use to set out the basic principles and institutions in the
mineral resources, in order to form a rational system of legal regulation in
the field of public-private cooperation in the sphere of subsoil use.
The prospect of the Code on
Subsoil and Subsoil Use, aimed at providing investment attractiveness of
subsoil use. As one of the measures to attract investment in exploration
provides for the allocation of prospecting and evaluation operations in a
separate step, the conditions of which will be as simple as possible. It is
assumed that at this stage of mining companies will be able to carry out the
entire range of activities necessary for them to assess the prospects of the
investigated area of mineral resources, including from the perspective of the
subsequent geological survey of the site. In this regard, provides for the
introduction of the license to search for promising areas of mineral resources.
The license for the search should include the
following conditions:
1. The possibility of
carrying out search operations, research and study to assess the prospects of
those or other sites;
2. The possibility of
sampling in limited quantities, analysis and laboratory studies (including
outside of Kazakhstan);
3. Restrictions on the
Turnover of the rights under the license, any encumbrance rights should be
prohibited;
4. The limited area of
work;
5. The term of the
license - not more than 3 years without the possibility of extending;
6. Does not provide
exclusive rights to the subsurface area provided that, in fact, will promote
competition between the mining companies in the rapid search and appraisal work
for the geological survey information sufficient to address the issue of the
transition to a more detailed exploration stage and applying for the
appropriate license on a "first come - first served";
7. will be provided
only minimal financial commitment at the level of the Code in the form of fees
for the right to perform search operations;
8. The need for
passing the examination and approval by the state of project documents in
relation to this stage of work is subject to cancellation.
Also in the draft, Code on Subsoil
provides a special mechanism of taxation, which is as follows:
1.
The
signing bonus is expected to be as non-tax payments to the budget.
2. Waiver of
commercial discovery bonus and payment for reimbursement of historical costs.
3. Exemption from the
subsoil of the land tax and property tax and introduce a progressive fee for
the use of subsoil during exploration.
4.
Exemption from VAT turnover from the sale of exploration and prospecting
works.
5. Exclusion of the
object of taxation rent tax export volumes of oil and gas condensate.
Despite the quite advanced
form of new legislation it prescribes the questions that need to be improved
with the scientific and practical side, it is proposed to modify the provisions
concerning the concepts of "contract" and "non-contract"
activities, as this question leads to disputes between mining companies and the
tax authority.
Based on the foregoing, it can be
concluded that the draft Code on Subsoil Kazakhstan requires further
improvement and development in the context of scientific and practical
analysis.
References
1.
The Law of RK "On Subsoil and
Subsoil Use" dated June 24, 2010.
http://online.zakon.kz/Document/?doc_id=30770874.
2.
The concept of the draft Code of RK "On
Subsoil and Subsoil Use".
http://www.kazenergy.com/images/stories/ob_association/exprtnye_sovety/Concept_27.05.2014.pdf