Kaldarbekuly Omiruzak

Doctoral student of Zhetysu State University named after I. Zhansugurov

Yerkinbayeva Lazzat

Vice-Rector for Academic Affairs at Zhetysu State University named after I. Zhansugurov, Doctor of Law, professor

TOPICAL ISSUES OF DEVELOPMENT OF THE LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN IN THE FIELD OF WITHDRAWAL OF THE LAND PLOT

Annotation. In article questions of development of the legislation of the Republic of Kazakhstan in the field of withdrawal of the land plot are considered. Authors have made a number of suggestions for improvement of the land legislation in the field of withdrawal of lands.

Keywords: withdrawal, land plot, compensation, state needs, land legal relationship.

In the conditions of modern reality, during implementation of national priority projects the increasing value is gained by the questions connected with seizure of land for the state or municipal needs.

From first years of the Kazakhstan independence the main attention to a private property has been concentrated on aspect of her protection.

By the constitution of the Republic of Kazakhstan it is fixed that nobody can be deprived of the property, differently as by a court decision. Compulsory alienation of property can be made for the state needs in exceptional cases provided by the law on condition of his equivalent compensation.

By the time of finding by the Republic of Kazakhstan of independence and sovereignty questions of withdrawal of lands were regulated by Chapter IV "Termination of the right of possession and the right of use of the earth" of the Land code of Kazakh Soviet Socialist Republic of November 16, 1990 [1]. At that time in the Republic of Kazakhstan there was no private property on the earth therefore the category "withdrawal of lands" was public category. Withdrawal of lands as the procedure was the administrative act and in the conditions of sole state ownership on the earth withdrawal of lands in the form of repayment wasn't provided. During the specified period not enough significance was attached to the rights and legitimate interests of citizens therefore the procedure of withdrawal was simplified and was carried out by public authorities of the power and management, or in certain cases employers, but not judicial bodies. In Art. 24 of LC Kazakh Soviet Socialist Republic the termination bases the rights of possession and the right of use of the earth have been affirmed. At the same time in this article the voluntary bases of the termination of these rights and compulsory have been integrated. The bodies making the decision on the termination of the rights of possession and the right of use of the earth were the relevant Councils of People's Deputies. Withdrawal in case of the termination of the labor relations in connection with which the office plot has been provided is carried out according to the decision of administration of the enterprise, establishment and organization. The decision of Council of People's Deputies and administration on the termination of the right of possession and the right of use of the earth could be appealed in court. Approach of the bases for the termination of the right of possession and the right of use of the earth agrees Land the code of KazSSR didn't deprive of the land owner or the land user of the right of removal of a harvest and didn't exempt him from payment of taxes and obligations for maintaining quality of the earth.

Exception of lands for the state or social needs was regulated by special Chapter V "Exception of lands for the state or social needs". According to Art. 28 of LC KazSSR exception of lands is made for the state or social needs based on the decision of the relevant Council of People's Deputies in coordination with the interested land owners and land users. Article 29 LC KazSSR set the prohibition of exception of especially valuable productive lands the and also lands occupied with especially protected natural and historical and cultural objects. Article 30 provided restriction of exception of lands of separate categories. So, exception of agricultural grounds with cadastral assessment is higher so-so than the region level and also lands of residential green suburbs of experimental fields, research and development and educational institutions of an agricultural and biological profile, the woods of the first group for the state or social needs it was allowed only in exceptional cases, the international obligations connected to execution, detection under a section of the field of valuable minerals, construction of roads, power lines and trunk pipelines and also objects of culture, health care, education.

On LC KazSSR withdrawal of lands at the agricultural enterprises for the purpose of creation of special land fund has been provided. It is the special measure allowing to expand a class of land users besides agricultural producers. The special land fund has been intended for granting lands agricultural purpose to the citizens who aren't members of collective farms, employees of the agricultural enterprises and also to agricultural cooperatives.

The following step in development of withdrawal of lands is adoption of law of the Kazakh Soviet Socialist Republic "About a land reform in the Kazakh SSR" of June 28, 1991. A problem of a land reform in the Kazakh SSR was transformation of the land relations for creation of legal, economic and social conditions for effective functioning of various forms of managing on the earth, ensuring rational use and protection of lands and achievement on this basis of stable increase in production of agricultural production. The land reform is set of the legal, economic and organizational and technical measures providing creation of qualitatively new structure of land tenure and land use in the period of the introduction of economy of the republic in the market relations. The land reform promoted numerous cases of withdrawal of lands. For identification of not used and irrationally used lands by bodies of the State committee of the Kazakh SSR for the land relations and land management inventory of land grounds has been carried out. According to Art. 12 "Withdrawal of the lands enlisted in special land fund" the sites included in the structure of special land fund were withdrawn from land owners and land users by regional council of People's Deputies in process of receipt of statements and petitions from citizens, cooperatives, the enterprises, associations and the organizations, also settlement and city councils of People's Deputies. Before transfer of lands to new owners and users they were used by former land owners and land users in an order and on the conditions established by regional council of People's Deputies. At further effective use of these lands they could be left to former land owners and land users. The consent of land owners and land users to withdrawal of the sites enlisted in special land fund wasn't required. The decision on withdrawal of lands at disagreement with him is appealed in court or protested by the prosecutor.

Adoption of the Constitution of the Republic of Kazakhstan has marked on August 30, 1995 [2] a new stage in development of the legislation on withdrawal of lands. The private property on the earth has been entered, therefore, there were land plots which just like that couldn't be withdrawn, withdrawal administratively assumed that the state represented by public authorities took away the lands back. In case of a class of private owners the new market mechanism of withdrawal – repayment as owners or got the paid land plots joins or received them free of charge from the state, the form of ownership on lands anyway changed. The decree of the President of Kazakhstan which is valid the law "About the earth" of December 22, 1995 considered a market mechanism of withdrawal – repayment. The article 60 "Bases of the Termination of the Right of a Private Property for the Land Plot or Right of Land Use" of the Decree "About the Earth" is designed differently, than in the old Land code of KazSSR.

Here the voluntary and compulsory bases of the termination of the rights for lands are already accurately differentiated. Withdrawal (repayment) at the private owner or the land user of the land plot for the state needs isn't allocated in the certain head any more as it was earlier. The address of collecting on the land plot or on the right of land use according to obligations of the owner or land user regulated by Art. 60 of the Decree "About the Earth" - is the new basis of the termination of land right. His emergence is caused by a new role of the land plots, now they act as the property which is in civil circulation and they can answer for civil obligations.

Also article concerning seizure of land for the state and social needs (Art. 63 of the Law) has changed. First, these needs are called the state needs. There is no instruction for social needs any more. This more correct name because in fact the majority of withdrawals is carried out for the benefit of the state, but not society is possible. For example, under construction of many objects the land plots will be withdrawn contrary to public opinion. In the Law "About the Earth" of January 24, 2001 the majority of the provisions enshrined in the Decree of the President of Kazakhstan which is valid the law, "About the earth" of December 22, 1995 remained. At the same time there were also new changes. So, in Art. 63 of the Law "Bases of Extinction of the Right of a Private Property for the Land Plot or Right of Land-use" as the base for forced exception one more base - exception at the owner or the land user of the land plot which underwent radioactive pollution with provision of the equivalent land plot is specified. In Art. 66 "Exception (repayment) of the land plot for the state needs" of the Law the new bases for such exception appeared: 1) international obligation; 2) provision of lands for needs of defense, especially protected natural territories, improving, recreational and historical and cultural assignment; 3) detection under a section of the mineral deposit (except popular); 4) construction of roads, power lines, communication and trunk pipelines and also other objects having the state value, determined by the Government of the Republic of Kazakhstan; 5) master plans of the cities and other settlements, diagrams of zoning of the territory and other town-planning or land management documentation approved in accordance with the established procedure.

Also here the instruction on an alternative has appeared: with the consent of the owner or the land user other equivalent land plot can be provided. Terms at which the land plot can be withdrawn as not used for designated purpose have changed. So, according to Art. 74 of the Law instead of 3 years shorter term is specified 1 year. The claim for withdrawal of the land plot in case of other land offenses can be made only after application of the disciplinary measures provided by the legislation on administrative offenses and a written warning of the owner or the land user of need to eliminate the violation of the law made not less than in three months prior to presentation of the claim and provided that for this term the owner or the land user won't eliminate violations of the law when using the site. The case is also provided if the property right to the land plot or the right of land use after withdrawal isn't able to be sold at the public auction. At impossibility of realization of such land plot or the right of land use for him after carrying out not less than three auctions within one year the land plot is enlisted by a court decision in special land fund.

On June 20, 2003 the Land Code has been adopted. Withdrawal definition was published in the Land code of RK. In item 1 of Art. 12 of LC RK the following concept is given: withdrawal - the action of public authorities directed to the termination at the private owner or the land user of the property right or the right of land use for the land plot in an order and on the conditions provided by the present Code and laws of the Republic of Kazakhstan. The land code of RK concretizes, supplements and changes some provisions of the previous Law of RK "About the Earth". In Art. 81 "Basis of the termination of the right of a private property for the land plot or the rights of land use" the legislator has strengthened terminology, having added the word "compulsory" to some types of withdrawal. For example, "compulsory alienation of the land plot for the state needs", "compulsory withdrawal at the owner or the land user of the land plot which isn't used for designated purpose or used with violation of the law of the Republic of Kazakhstan", "compulsory alienation at the owner or the land user of the land plot which has undergone radioactive pollution with granting the equivalent land plot" [3].

The legislation provides a possibility of the state to withdraw the land plots and other natural resources from a private property for the state needs. In this case the equivalent property is provided to the owner and other suffered losses are paid or the damages caused by the termination of the property right are in full paid. At the owner's disagreement with the decision attracting the termination of the property right it can't be carried out before settlement of dispute in a judicial proceeding. By consideration of a dispute also all issues of compensation to the owner of the caused losses are resolved.

Withdrawal of the land plot at the state land user is made for the state needs on the basis of the Resolution of the government of RK, the unilateral decision of the executive body which is carrying out withdrawal. According to requirements of the legislation compulsory alienation of the land plot for the state needs is made at respect for publicity of the procedure of alienation by publication of the resolution in republican or local mass media within three working days from the moment of its acceptance [4].

Summing up the results, it is possible to reveal two main periods of development of the legislation on withdrawal of lands. The first period covers the Soviet period and the period of formation of the Republic of Kazakhstan as independent state up to adoption of the Constitution of RK of August 30, 1995. During this period withdrawal of lands is especially public category [5]. The procedure of withdrawal is carried out administratively by public authorities. The second period begins with adoption of the Constitution of RK and proceeds till present. This period when in the course of withdrawal of lands the private beginnings are shown [6]: withdrawal is carried out in the form of repayment according to standards of the civil legislation. At the same time protection of the rights and freedoms of the person and citizen amplifies – now compulsory withdrawal is carried out mainly in a judicial proceeding. B.Zh. Abdraimov and S.A. Bogolyubov fairly notice that "in the conditions of the market relations the maintenance of institute of withdrawal of lands has significantly changed [7]. In the former look he represented set of the precepts of law regulating processes of redistribution of lands in public sector at the existing monopoly of a sole property of the state for the earth. With introduction of the earth in economic circulation the land relations began to be governed not only the land, but also civil legislation.

Analyzing a ratio civil, land and other branches of the domestic legislation, it is possible to note that on the one hand the Land Code of RK supplements, concretizes the Civil Code of RK, and on the other hand - limits action of standards of the civil legislation in the field of regulation of land legal relationship.

So, despite the existing norms and rules regulating legal relationship of seizure of land for the state needs, the quantity of the problems connected with practice of their "coordinated" application only increases.

In the conclusion it would be desirable to note that the current legislation, in the sphere of seizure of land, needs not only more accurate regulation, but also, first of all, coherence to provide protection of land rights of citizens fully.

Summing up the result of all aforesaid, it is possible to draw a conclusion on need of adoption of the separate law, not only establishing additional cases of compulsory seizure of land for the state needs, but also complex regulation of an order and the bases of such withdrawal. This law has to include all norms regulating this basis taking into account interests both society and each certain owner in general. The relevant standards shouldn't allow an arbitrariness from public authorities and local governments and unreasonable violation of the rights of a private property, but at the same time to give the chance in due time to satisfy the interests of other, incomparably more considerable part of the population.

References:

1. Land code of the Kazakh SSR of November 16, 1990. - Union of Right Forces Lawyer.

2. Constitution of the Republic of Kazakhstan of August 30, 1995. – Almaty: Lawyer, 2007.

3. Land code of the Republic of Kazakhstan of June 20, 2003 No. 442-II.

4. The civil code of the Republic of Kazakhstan (The general part), is adopted by the Supreme Council of the Republic of Kazakhstan on December 27, 1994.

5. Stamkulov A. S. Problems of the land legislation in Kazakhstan // the Legal newspaper. - 2000. – 45-48 р.

6. Baysalov S. Land legislation of RK. – Almaty, 1998. – 269 р.

7. Abdraimov B.Zh., Bololyubov S.A. Land right of Russia and Kazakhstan. - M.: Lawyer, 2007. – 346 р.