Yerkinbayeva Lazzat

The first vice-chancellor of education and methodology, Doctor of Law of Zhetysu State University named after I. Zhansugurov

Kaldarbekuly Omiruzak

Doctoral student of Zhetysu State University named after I. Zhansugurov

THE COMPARATIVE ANALYSIS OF AN EASEMENT IN THE REPUBLIC OF KAZAKHSTAN AND IN GERMANY

In article are considered distinctions of an easement of Germany and the Republic of Kazakhstan. The work purpose — to reveal the brightest differences of the enshrined provisions on easements in these countries. During the research were used both general scientific, and private and scientific methods of scientific knowledge. The authors come to a conclusion that in Kazakhstan the easement did not receive sufficient prevalence and it is possible to make use of experience of Germany for its improvement.

Keywords: easement, right of limited use of someone else's property, private easement, public easement, land plot.

Easement — the right of limited use of someone else's property recognized by the law. For the first time this institute appeared in Ancient Rome. Now the easement found the reflection in norms, both the Kazakhstan, and foreign legislation, in particular, legislations of Germany. In this regard, carrying out the comparative and legal analysis of normative legal acts of these countries by the following criteria attracts interest: a concept of a land easement, uzufrukt in Germany and its analog in the Republic of Kazakhstan, the purpose of establishment of an easement, court practice.

The land code establishes to the Republic of Kazakhstan a concept of a public easement of Art. 67. The public easement is an encumbrance of the land plot which is established by the law or other regulatory legal act of the Republic of Kazakhstan, the regulatory legal act of the subject of the Republic of Kazakhstan, the regulatory legal act of local government body in cases if it is necessary for ensuring interests of the state, local self-government or local population, without seizure of land. Also, according to Art. 188 of the Civil Code to the Republic of Kazakhstan, the easement is the right of the owner of a fast estate (the land plot, other real estate) to demand from the owner of the neighboring land plot, and in necessary cases and from the owner of other land plot (the neighboring site) of providing the right of limited use of the neighboring site. In § 1018 German civil codes (German, BGB) of 01.01.1900 it to be said by Bürgerliches Gesetzbuch that the land plot can be burdened in favor of the owner of other land plot so that the last had the right to use others land plot in certain cases or that on others land plot certain actions or that implementation of the right which follows from an ownership right on the burdened land plot concerning the dominating land plot was excluded could not be made. From these definitions it is possible to reveal the following differences: In comparison with the Civil Code of the Republic of Kazakhstan provides a situation at which on others land plot commission of certain actions is forbidden in the German Civil Code. In Kazakhstan, these bans can be carried out due to norms of the general ban which contain in town-planning regulations, construction, ecological, sanitary and hygienic, fire-prevention and other standards [5, 98–101].

In the German Civil Code there is an opportunity to exclude implementation of a certain right by the owner of the land plot. Characterizing an easement of the Republic of Kazakhstan, one may say, that, in comparison with an easement of Germany, it, besides a private easement, allocates also a public easement. In this regard the circle of possible subjects of an easement of Kazakhstan are wider in comparison with an easement of Germany as means except owners of property presence of such subject as public education [8]. Thus, the main difference are the bans from certain actions and an exception of certain rights which can be established in an easement of the German Civil Code.

The German civil code also provides a personal servitude. In the German Civil Code " usufruct" the easement of the rights [2] is independent subspecies. Usufruct is an encumbrance of a thing so that the person in favor of whom encumbrance is made had the right to take all benefits from use of a thing. This definition of an usufruct is fixed in § 1030 German Civil Codes. Usufruct is established concerning fast, personal goods, and also concerning the rights [1]. That is, usufruct it is applied also to the land plots. Material content of this right consists: First, in the personal direct use of the thing in kind, in compliance with its economic property and personal needs of the user. Secondly, in assignment to all fruits and works of a thing what can only be taken from it by its nature, irrespective of personal need and from direct use. In this assignment of fruits of use the user can be guided by the economic discretion, taking from a thing not only its natural fruits, but also those which are got from it by means of processing and the industry, as well as fruits so-called civil, only this discretion has to be by all means economic, but not any and casual.

The user has to look at property as on others thing, as on the capital inviolable which upon termination of terms of use has to come back to the direct owner in all economic integrity without damage and damage of all that makes an inviolable source of productivity and the income, in compliance with the material and economic nature of a thing [6, page 553-554].

Now in the Republic of Kazakhstan there is no norm fixing usufruct. In the legislation of Germany it is not given accurately definite purposes of establishment of an easement while the Civil Code of the Republic of Kazakhstan and the Land Code of the Republic of Kazakhstan establish the purposes to which the easement can be applied. These purposes contain in Art. 67 of the Land Code of the Republic of Kazakhstan, and also Art. 188 of the Civil Code of the Republic of Kazakhstan.

Thus, both in the legislation of the Republic of Kazakhstan, and in the legislation of Germany there is no exhaustive list of the purposes for which the easement is established, however the list given in the Civil Code of the Republic of Kazakhstan and the Land Code of the Republic of Kazakhstan can be established allows to define main objectives for which the easement. The analysis of court practice of Germany shows that agreements on easements which are generally concluded establish:

• Bans on a construction of craft workshops;

• The ban on occupation of a certain kind of activity in the territory of the land plot;

• The ban on implementation of industrial activity on the land plot;

• The ban on storage and sale by the owner of the land plot of products which are not made on the land plot of the owner of an easement [4, with. 144–145].

In court practice of the Republic of Kazakhstan private easements are the most widespread:

• Establishment and the termination of the right of pass and journey through the neighboring site;

• Establishment of an easement for construction of a linear object.

Disputes on establishment of a payment for use of the land plot are also widespread. If to compare prevalence of application of an easement in practice, then it is possible to note that in law-enforcement practice of Germany expansion of the sphere of use of easements is observed, easements become claiming [3]. In the Republic of Kazakhstan there is no broad practical application of an easement. Therefore the science about easements is developed in Kazakhstan less, than in the countries of continental Europe also [8].

The analysis of practice shows that in Germany, the bans generally are established on commission of actions, and in the Republic of Kazakhstan the rights for pass, carrying out construction works and so on are established. It can be explained with the fact that the concept of an easement of Germany provides establishment of the bans on commission defined action by the owner of the land plot, and definition in the Republic of Kazakhstan provides only establishment of certain rights. Also prevalence of the bans in an easement of Germany can be explained with the fact that this easement is used as means of restriction of the competition [7]. Summing up the results, it is possible to come to a conclusion that the easement in Germany strongly differs from an easement of the Republic of Kazakhstan. Generally it is shown in absence at an easement of the Republic of Kazakhstan of some features of an easement of Germany and in distinction of court practice. Considering small prevalence of an easement in Kazakhstan, it is necessary to improve rules of law which regulate it. It is possible to make use of experience of the European countries where the easement has big prevalence, than in the Republic of Kazakhstan for these purposes. It would allow to protect more fully interests of owners of the neighboring sites who establish for themselves the right and at the same time encumbrance in the form of an easement.

References:

1. Byshkov P. A., Ulyanishchev V. G. Limited rights in rem on the land plots in the countries of continental Europe and Russia: the abstract of the thesis for a degree of Candidate of Law Sciences. M, 2011–27 pages.

2. Guzayeva G. A. Contract of donation as basis of emergence of the right //Questions of Management Magazine (2013, release 23) Page 167-170.

3. Dzhunusova D. N. The concept, essence and types of an easement on the land plot//Is published in the magazine "Lawyer's Adviser" No. 4 — 2012.

4. Emelkina I. A. System of limited rights in rem on the land plot: monograph. M.: Volters Kluver, 2011. Page 144-145.

5. Kravtsova D. L. Land easements in countries of Western Europe and Russian law: main aspects of the comparative analysis [Text] / D. L. Kravtsova, Ya. A. Kovalyov//Urgent problems of the right: materials scientific and practical conference (Moscow, November, 2011). — M.: Your printing partner, 2011. — Page 98-101.

6. Pobedonostsev K. P. Course of civil law. Volumes I-III//Publisher: Direkt-media, 2014 pages 553-554.

7. Troshkin S. I. Right of limited use of someone else's property (easement)//International correspondence scientific and practical conference "Topical Issues of the Right" (Russia, G. Novosibirsk, on May 3 2012 .)

8. Chepkasov R. A. An easement in Russia//Humanitarian scientific research. 2014. No. 8.