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

CURRENT PROBLEMS OF LEGAL REGULATION OF WITHDRAWAL OF THE LAND PLOT FOR THE STATE NEEDS

Annotation. In article separate problems of legal regulation of seizure of land for the state needs, the theoretical questions connected with use of norms of various branches of the right are considered.

Keywords: legal regulation, withdrawal, land plot, state need, land relations.

Recently speak about the arising disputes between the authorities withdrawing the land plots allocated under construction and owners or the actual owners of housing and the land plots on which this housing is located much. The research of standard materials and jurisprudence demonstrates that these questions are relevant also today.

It should be noted that now there is properly no developed legal mechanism of seizure of land for the state and municipal needs, and it leads to impossibility in due time to satisfy public requirements, to realize national projects, to increase the rates of housing construction and so forth.

Besides, the earth of the cities and other settlements always were the most attractive to investors, and new construction often affects the rights of owners of the land plots and real estate objects which are on it therefore the conflict is born of private interests with the interests of both builders, and public authorities, and local governments.

Seizure of land on which there are premises for the state and municipal needs leads to the compulsory termination of the property right of persons to individual and certain things - premises.

The principle of inviolability of property and inadmissibility of any deprivation of property besides that it is formulated in Housing, Civil and Land codes of RK, first of all is defined in the Constitution of RK, bringing him to the level of the constitutional principle.

"So, according to Art. 26 of the Constitution of RK 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" [1].

And at the same time, as marks out B.Zh. Abdraimov, not less important property in legal relationship there is a protection of public interests. Especially obviously it is shown in the housing sphere [2].

The land plots and the real estate which is on them are objects of legal relationship of various branch accessory - land, civil, housing, constitutional. Law-enforcement practice reveals the problems caused by existence of conflict-of-laws rules, the specified branches, gaps in the legislation.

E.N. Novokhatskaya, disclosing the content of the property right, I have noted that the subjective property right consists of two competences. "The first competence - to make certain actions concerning a thing - contains three sub competences: to own, use and dispose of a thing. The second competence - competence of the requirement directed to abstention of the obliged persons from actions which would prevent the owner to carry out the competences stated above.

The limited real right is not isolated part of the property right, and existing along with him and consisting though from derivative of him, but independent legal opportunities the right for a thing with which establishment the owner doesn't lose the competences" [3].

Legal regulation of the relations on seizure of land for the state and municipal needs in our legislation in the analysis can be considered in two aspects: first, from the moment of making decision on withdrawal of the land plot there doesn't attack the termination of the property right at the person this land plot, and here then it is necessary to talk about restriction of the property right, secondly, after the expiration of a year, in case of the owner's disagreement with the decision on withdrawal of the land plot or not achievement with the owner of the agreement on the redemption price or other conditions of repayment, there are judicial proceedings which can drag on for a long time.

Yes, we can agree with this dual situation of two competences before making decision on the redemption price and other conditions, but the owner of the land plot which is subject to withdrawal for the state or municipal needs from the moment of the state registration of the decision on withdrawal of the site before reaching an agreement or adoption by court of the decision on repayment of the site can own, use, dispose of him at discretion and make the necessary expenses providing use of the site according to its purpose and also the owner can own, use, dispose of him at discretion and make the necessary expenses providing use of premises according to his appointment.

There is relevant also a clarification of the legal nature of the right of the state for the compulsory termination of the right of a private property for the land plots. In regulation of the land relations the tendency to gradual refusal of the absolute nature of the right of a private property for the earth is observed [4].

It is difficult to agree with this point of view as the property right hasn't stopped, respectively, and competences of the owner have to remain for the owner completely too including orders, however this power is most vulnerable. At seizure of land, being in a private property, the state realizes powers as the public power. "The right of the state for compulsory alienation of a private property naturally follows from a primacy of policy over the right, forces over the principle, - notes U. Mateja. - Need of introduction of such institute is expression of political will of the state" [5].

By consideration of institute of compulsory withdrawal of the earth in the public purposes it is impossible to do without analysis of difference between the private-law (civil) and public relations. As V.A. Evstegneev notes, transactions in which public educations participate, quite often have a social component (social orientation) which isn't allowing to rank them as especially market. The transaction is a private-law concept as each party pursues in her only the interests. Therefore it is impossible to recognize transfer of the private earth to public property as her compulsory repayment as the transaction, but many common features allow to consider it the quasitransaction [6].

Shortcomings of the mechanism of seizure of land for the state and municipal needs are shown, for example, that the public authorities authorized to make decisions on withdrawal, an order of preparation and adoption of these decisions are defined by the federal land legislation, however uniform structure of the bodies authorized to make the decision on seizure of land for state and, respectively, executive bodies of local government (for municipal needs) aren't defined [7]. Therefore it is worth agreeing with I.V. Bogomyakov who offers: "The decision on withdrawal of the land plot for the state or municipal needs is accepted respectively by federal executive authority on management of federal property, executive authority of the subject of RK on management of the property which is owned by the subject RK or executive body of local government on management of municipal property" [8]. The uniform structure of the bodies making decisions on withdrawal will allow to solve further a problem of the responsible subject for compensation of the withdrawn land plot and premises which are on him as in jurisprudence cases when one body makes the decision meet, and shifts compensation to another, and the owner as a result suffers.

According to E.A. Konjuh, it is necessary to understand objectively arisen socially significant requirements determined by the law, need for which satisfaction is caused by the interests of a wide range of subjects, as the state (municipal) needs, realized in the order established by the law by public educations. The given concept contains expression "socially significant requirements", still L.A. Kasso specified in "The Russian land right" that public interest in a construction for which the land plot is intended has to be a reason for expropriation. Public interest meant advantage for more or less extensive group of the population, but it is optional to all residents of the state, for example to construction of hospital or church [9].

In the foreign legislation this criterion is formulated with some distinctive features in the concrete states. In Germany the specified concept is formulated as "public benefit", the USA - as "the socially useful purposes", Portugal and Turkey - "public interests", Sweden - "important public interests", Italy - "common interests", Belarus - "public need", in Spain - "public expediency or social interests" [10]. In the given examples public, but not the state interest is the cornerstone of withdrawal. In the legislation of RK state interest is the cornerstone, and now there are disputes on need to expand the list of the bases of withdrawal of the land plot for the state and municipal needs. According to V.A. Yevstigneyev, the concept "state and municipal needs" can include not only public requirements, but also is private the economic interests of the specified bodies as ordinary owners [11].

The main characteristic of market economy is existence of the right of a private property. At his absence businessmen would hardly undertake risk of investments in any assets and left the present possibility to other subjects of economic activity, and, as we know, the lack of investments considerably slows down development of society.

The majority of the countries has drafted necessary laws for ordering of the procedure of withdrawal to limit the prevailing right of the state for a possibility of withdrawal of lands. Such laws, as a rule: 1) establish cases when the state has the right to use withdrawal mechanisms; 2) describe the rights and possible actions of participants in withdrawal cases; 3) define the types of losses caused to owners of the rights for the withdrawn property who are subject to compensation; 4) establish an order of determination of the size of these losses [12].

Acts for withdrawal in many developed countries, besides the standard of "the fair market value", are supplemented with various practical recommendations. So, for example, in the USA authorities have to compensate completely losses of owners of the rights for the land plots to restore the land use conditions existing until withdrawal. The changes in the cost of the land plots (not very well, decrease or growth) caused by making decision on withdrawal aren't considered. The state pays the market value of the land plot existing before publication of the decision on withdrawal.

In Great Britain the authorities knowing the procedure of withdrawal at first try to agree with all participants of the transaction about compensation of the arisen losses [13]. Some countries offer to "the fair market value" an additional award in connection with the compulsory nature of withdrawal. In cases of compulsory seizure of land the state acts as the voluntary buyer. However not always owners of the land plots wish to sell them [14].

Authorities of various countries have developed mechanisms of establishment of the big amount of compensations in comparison with the market value of forcibly withdrawn sites. Great Britain pays the damages caused by expropriation of farmlands which has led to violation of a crop rotation [15]. Besides losses for the withdrawn earth of agricultural use, the owner of the rights for this site has the right for compensation of losses of agricultural production provided that: 1) this subject within the next 3 years planned to receive benefit from agricultural production; 2) this subject loses benefit in connection with withdrawal of the land plot; 3) this person within the next 3 years begins new production on other land plot.

Summing up the result, it should be noted that in the majority of the countries methodical recommendations about calculation of the size of the losses caused to owners of the rights for the land plots withdrawn for the state needs are developed.

The obvious found gaps in legislative regulation of this or that institute of substantive or procedural law, a disparate in terminology generate that the same question is differently regulated in the acts adopted by a time approximately at the same time. As they say in such cases, standards of various acts "aren't joined" among themselves and create quite often difficult problems for the law enforcement official. All this can be regarded as legislative marriage which needs to be eliminated.

In Kazakhstan in the organizational and legal plan the mechanism of relationship between all participants of process of seizure of land isn't defined, including the body (more precisely specific officials) which will organize all process of seizure of land isn't defined; It is necessary to make changes and to the organizational mechanism of carrying out this work. The possibility of creation of uniform public authority on withdrawal or expansion of functions existing which competence would include continuous monitoring, collecting and data processing on the land plots preparation and holding a procedure of withdrawal, will allow to avoid situations against which the estimated organizations at work in this direction of the activity come up, namely in lack of information in the conditions of need of urgent carrying out estimated works.

It is very important to be guided at direct assessment of the withdrawn land plots by information on objects analogs (within a method of comparison of sales as most reliable and demonstrable method of assessment in this case) in territories as close as possible to a withdrawal zone. In these territories initial information hasn't undergone distortion in connection with the begun procedure of seizure of land for the state or municipal needs. The analysis of the legislation of foreign countries shows that a possibility of use of data on objects - analogs (first of all in the comparable zones which are most close to a withdrawal zone) more than it is proved.

Improvement of the legislation and also methodical providing on the basis of the offered offers will allow to carry out more reliable assessment of market value of the land plots that will allow to receive, economic effect to all participants of the real estate market. It will allow to observe; economic interests both business and each citizen, and municipalities and public authorities that as a result will affect more positive: image of the state and also independent consultants of estimated activity.

Application complex, approach to improvement as a result will provide a possibility of creation of more transparent system of relationship of all parties involved in this process on the principle of equality. It not only will save the budgetary funds demanded for implementation of other projects, but also will strengthen guarantees to real investors and land users of stable conditions of their activity.

References:

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

2. Abdraimov B., Procedural features of permission of land disputes. - Almaty: LEM publishing house. - 96 p.

3. Novokhatskaya E.N. The land right of the Republic of Kazakhstan in schemes. General part. Petropavlovsk, 2006. - 74 p.

4. Abdraimov B.Zh. Procedural features of permission of land disputes. Almaty. 2003. - 299 p.

5. U. Mateja. Land legislation of foreign countries. - M, 1982. – 352 р.

6. Dambiyev T.V. Seizure of land for the state and municipal needs // the Lawyer. - 2006. - No. 10. – 78-83 р.

7. Evstegneev V. A. Ownership of land in focus of interests//the Magazine of Russian law. - 2004. - No. 8. – 96-99 р.

8. Bogomyakov I.V. Shortcomings of the mechanism of seizure of land for the state and municipal needs//the Russian justice. - 2006. - No. 11. – 48-54 р.

9. Kasso L.A. Russian land right. - M, 1906. – 150 р.

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

11. Galinovskaya E.A. Delimitation of the land plots provided under construction//the Right and economy. 2002. No. 2. – 87 р.

12. Asian Development Bank. Compensation and Valuation in Resettlement: Cambodia, People’s Republic of China, and India. Asian Development Bank. 2007. 70 p.

13. Kauko Viitanen, Ph.D. Professor of Real Estate Economics and Valuation. Just Compensation in Expropriation? XXII International Congress Washington, D.C. USA. - 2002. - 8 p.

14. Land Compensation Act. 1961.

15. Land Compensation A.-t. 1973.