Doctoral
student of Zhetysu State University named after I. Zhansugurov
Yerkinbayeva Lazzat
The first vice-chancellor of education and
methodology, Doctor of Law of Zhetysu State University named after I.
Zhansugurov
Easements in
countries of Western Europe and the Kazakh right: main aspects of the
comparative analysis
Easements traditionally are among
rights in rem. And as the right in rem an easement differs from obligations in
the fact that gives direct domination over a thing while the liability law is
only the right for actions of the person and ties only the promised face. Bases
of a design of easements, were developed in Roman Law and keep the value as
fundamental model for understanding of an essence the easements of the rights
and today.
The easement limits competences of
the owner of the "serving" land plot therefore its contents are quite
in detail regulated by norms of law. Besides, with different development of
relations of production, town planning, agricultural industry both their list,
and the sphere of use as application of easements is in certain cases very
effective way of a solution of the problem of ownership limitation in public
concerns and for the benefit of the third parties significantly extends. In
this regard, is of interest carrying out the comparative and legal analysis of
the legislation devoted to easements both in the Kazakhstan, and in countries
of Western Europe, such as France and Germany.
The rules of law governing the
easements and the relations with them connected have much in common both in
Kazakhstan, and in foreign, in particular in the German legislation. As well as
in the German civil code, in the Civil Code of the Republic of Kazakhstan the
easement is carried to number of the rights in rem on property belonging to the
persons who are not his owners. In both specified acts easements are subject to
the state registration (in the Unified State Register of Rights on the real
estate and in the land book). Are uniform and ways of civil protection of a
land easement against violation is a claim for elimination of violations or the
nugatory claim.
The concept of an easement is given
in item 6 of Art. 188 of the Civil Code [1]. It is characterized as 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 (easement) [2]. Also it is specified in
item 6 of Art. 188 of the Civil Code that the easement can be established for
ensuring needs of the owner of a fast estate which cannot be provided without
establishment of an easement, and the open list of such needs is given:
ensuring pass and journey through the neighboring land plot, laying and
operation of power lines, communication and pipelines, ensuring water supply
and melioration. In science of civil law such easements have the name of
positive.
Unlike the Civil Code of the Republic
of Kazakhstan the German civil code directly allocates both positive and
negative easements. In § 1018 German Civil Codes three types of easements (one
– positive and two - negative) the following contents are established:
- the right to use the serving land plot: the
owner of a superior estate has "the right to use others site in certain
cases". The duty of the owner of the serving site consists of action of
the owner of a superior estate on the site (for example, pass through one site
on another, grubbing of stubs, the water supply system device);
- the ban on use of the serving land
plot: the owner of the burdened land plot "certain actions" could not
be made (non facer) which he has the right to make according to § 903 German
Civil Codes in a usual situation (for example, construction of factory as it
can be connected with other site);
- an exception of implementation of
the right of the owner of the burdened land plot: for the owner of the burdened
land plot implementation of the right which follows from an ownership right on
the burdened land plot is excluded (for example, presentation of the nugatory
claim is excluded) [3].
As for negative easements in the
Kazakh right, the role them, most likely, is carried out by norms of the
general ban which contain in town-planning regulations, construction,
ecological, sanitary and hygienic, fire-prevention and other rules, standards.
Meanwhile it is represented that these rules not in all cases are capable to
provide needs of owners of immovable things. Court practice, due to the lack in
the legislation of the direct instruction on a possibility of establishment of
negative easements, is extremely avaricious and most often goes on the way of refusal
to citizens in protection of their rights, except cases when use of an
immovable thing becomes absolutely impossible or is significantly complicated.
Thus, in foreign laws and orders the possibility of establishment of a negative
easement promotes fuller protection of the rights of the owner of an immovable
thing.
The bases of establishment of an
easement in Germany directly are not specified in the German Civil Code, but by
interpretation of its norms, it is possible to come to a conclusion that they
are similar to the bases specified in item 3 of Art. 274 of the Civil Code of
the Republic of Kazakhstan, namely the easement are established by agreement of
the parties or in a judicial proceeding at not reaching an agreement on
establishment or conditions of an easement.
It is worth paying separately
attention to aspiration of the German legislator to provide respect for
interests of the owner of the office land plot. So, §1020 the German Civil Code
assigns to the competent person which is carrying out an easement, a duty not
to break and make thrifty use of interests of the owner of the burdened land
plot. In our opinion, legitimation of similar norm in the Civil Code of the
Republic of Kazakhstan will allow to provide balance of interests of owners of
lands - neighbors. One of urgent today classification of easements is their
division on private and public. Regulation of this question in the legislation
of France, Germany and Kazakhstan is carried out differently.
For the first time standard
expression of a public land easement is found since 1804 in the French civil
code ("Napoleon's Code") in which authors included chapter about the
easements established by the law. So, by articles 649, 650 of the French Civil
Code it is established that a subject of the easements established by the law
is the public or municipal advantage; everything, as for these easements, is
defined by special laws and regulations. On other way of development of the
public easement law the legal system of
Germany went. The civil code of Germany, however, also as well as the Civil
code of the Republic of Kazakhstan, contains regulations only on private-law
easements – paragraphs 1018 – 1029 German Civil Codes. Meanwhile, encumbrance
in favor of public interest of the land plot which is in a private ownership,
the right of Germany does not carry to rights in rem on the earth, but to
ownership limitation. The doctrine proceeds from clear split of concepts of
encumbrance of property in favor of the particular person or persons or in
favor of an unlimited circle of people. The modern legislation of Germany
refers public encumbrance of the land plots only to the sphere of regulation of
public law. The civil legislation of Germany excludes public interest from the
list of subjects of the private-law relations that is confirmed with both the
legislation and practice. So, for example, §§1104, 1112 exclude any rights in
rem at uncertain subjects [4].
Settlement in §1025 the German Civil
Code of the situation arising in case of the partition of the land plot is
remarkable. In this situation, the land easement remains in force concerning
its separate parts, however implementation of an easement if other is not
proved, it is allowed only so that it did not bring difficulties to the owner
of the burdened land plot. If the easement provides advantage only to one of
the specified parts, it stops concerning other parts. We believe that fixing of
similar situation in the Civil Code of the Republic of Kazakhstan would allow
to reach uniformity in determination of destiny of an easement at the partition
of sites [5].
In the French Civil Code the section
IV of the book of the second where practically in the first lines of this
section, in Art. 637, the legislator formulated a concept of an easement is
devoted to easements. It looks quite wide as includes "duties (duty) lying
on one manor for requirements and advantage of other manor belonging to other
owner". Respectively, the owner's duties in relation to the owner of the
neighboring site can arise as from their agreement here as it is provided in
the Civil Code of the Republic of Kazakhstan and the German Civil Code, but
also and from the law, moreover, from natural (geographical) position of the
area. Equality of a legal status of participants the easements of the relations emphasizes Art. 638 of FGK
where it is fixed that the easement does not give any prevalence of one manor
over another [8].
Summing up the result of the
aforesaid, we will notice that regulation the easements of the relations in Kazakhstan, France and
Germany has many similar lines. It is explained by long history of existence of
this institute and its emergence in Roman Law. At the same time, the different
legal systems existing in Kazakhstan and
Western Europe left the mark on development of easements and relations,
related. And, in our opinion, some features unknown to Kazakh law of the specified institute, can be applied
also in the domestic legislation and will 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. Civil code of the Republic of Kazakhstan (The
general part), enforced by the Decree of the Supreme Council of the Republic of
Kazakhstan dated December 27, 1994
2. Land code of the Republic of Kazakhstan dated 20
June, 2003 No.442
3. The German civil code (German Bürgerliches
Gesetzbuch, BGB) of August 18, 1896.
4. Civil code of France (Napoleon's Code) on March 21,
1804 (Code Napoléon, also Civil code of French (Code Civil des
Français)
5. Civil and trade law of the Foreign states. Red: E.
A. Vasilyev and. Komarov. - M., 2006.
6. Main institutes of civil law of foreign countries.
Comparative and legal research. V. V. Zalessky. – M.: Prod. Norma.2000
7. Real easement: contents, bases of emergence and
Termination / Manko E. A. 2009.
8. Main institutes of civil law of foreign countries.
Comparative and legal research. V. V. Zalessky. – M.: Prod. Norma.2000.