Lecturer - Rahmetoldyna A.K.

Chair of Civil Law, Civil Procedure, Labour and Law

Al-Farabi Kazakh National University

Civil liability in the Republic of Kazakhstan

The Constitution of our republic declares state legal. Formation of the rule of law involves a complex and rather lengthy approval process of law and order, growth and improvement of justice for all citizens of our country. Legal state is intended to develop not only the highest social values of society as a whole: democracy, humanism, justice, but also a practical tool for ensuring the implementation of organizations and citizens of their rights and their protection in the event of a breach. Unconscious of its responsibility to society, to others, unconscious responsibility for their work can’t be an organization of society, it is impossible to its successful development. When this sense of responsibility is not enough and the behavior of a person at odds with the interests of society, the question arises about the prosecution. The importance of responsibility increases with economic reform. The ongoing major changes in the economic system of our country, requires a clear understanding of the constituent elements that drive the entire system and allows it to operate with the required efficiency and in the right direction. The issue of civil liability in the legal literature has been paid much attention. Interest in the issue of liability is justified because it is a means of ensuring and strengthening the rule of law in society. Civil liability in addition to the property is one of the principal on which rests the system of civil law.

Civil liability - one of the most difficult and the most important institutions in civil law. This is a reaction to the society and the state offense. And this reaction is expressed in the legal regulation of social relations, where the rules on liability for violation of the law play a special role. Opportunity to compel compliance with the law has the inherent property of any law. Despite the legitimate interest of scientists to consider this problem for a long time, we can’t say that the already formed a single concept of civil liability and, in particular, that the commonly held view of the ratio of civil liability and general liability. In foreign jurisprudence also not developed a general concept of civil liability, which covers both contractual and tort liability. In accordance with the division of the rules of civil law on general provisions on obligations and rules governing certain types of obligations, we must distinguish between general and special rules of liability. General rules on liability contained in the general part of the Civil Code of the Republic of Kazakhstan can be applied to any liability under the conditions stipulated in the norm, if they apply to a particular type of commitment does not exclude special norm. Special rules on liability established by Articles special part of civil law and can be used only in case of violation of obligations under the relevant type or hurting yourself. Kazakhstan, heading for a market economy, focused on the following principles: freedom of entrepreneurship, privatization, development of organizational and legal forms of business. This influenced the increased autonomy of the basic production units and, in turn, means the possibility of extension of their activities and, of course, increased responsibility for its results. The emergence of a number of interesting papers, articles not made sufficiently clear on the concept of civil liability, and therefore it seems appropriate to consider the point of view of different authors [1].

Researchers distinguish between responsibility as a category of morality and law. It is known that the moral sense of responsibility is the key to the successful implementation of each of their duties. But morality must be supported by the dictates of the rule of law, as long as people do not learn to work without the rule of law, that is to achieve a high sense of justice in society and the development of adequate legal culture.The Civil Code of the Republic of Kazakhstan also does not give a clear definition of civil liability, and provides only a definition of breach of the obligations under which according to claim 1 Art. 349 CC RK means its non-fulfillment or improper fulfillment (untimely, with deficiencies of goods and works, in violation of the other conditions specified content obligations) improper performance.

Civil liability is a kind of legal liability, which has all the features that characterize the legal responsibility. In one case, the responsibility was identified with the enforcement measures in the other - with the duty to account for their actions, in the third - depriving the cause of part of his property rights in order to meet the interests of the victim. The actual performance, even forced, cannot be considered a measure of responsibility. The duty of specific performance derives directly from the obligation itself. I. If only it were limited to the consequences of the offense, it would be tantamount to a complete irresponsibility of the offender, who, like before and after the violation would carry the same duty - to meet its obligation. Thus, for liability in civil law, as well as for legal liability in general, characterized by state coercion, but not all, but only forced to bear the negative consequences of property, arising out of the failure, improper performance of obligations under the Agreement, of causing non-contractual damages. Specific types of negative consequences for the offender can be replaced new unfulfilled obligation (duty to compensate the damage caused), adherence to the breach of duty additional (e.g., responsibilities, in addition to execution of breach of contract, failure to compensate the loss), deprivation of rights, which implies the violation of duties (e.g. when the withdrawal state income residential buildings by the court) [2].

Civil liability is a type of legal liability (except for civil stand out even criminal, administrative, financial responsibility).

I lower the widespread notion in the theory of law the so-called positive responsibility. I believe that this is not a legal responsibility, it is most likely in the area of moral responsibility.

Legal responsibility has a number of specific features that allow you to allocate it among the other types of social responsibility:

- Based on legal standards, formally defined and has a clarity of detail and general validity;

- Guaranteed by the state;

- Provides state coercion or public conviction;

- Its consequences involves government approval, promotion or conviction and sentence;

- Performed in the procedural form;

- Is uniform, but has two forms of implementation (voluntary and state-enforced).

Legal responsibility in the theory of law is understood in different ways. The two most common are the following understanding:

- The legal responsibility - it is the duty of the legal regulations subject of law for him to suffer adverse consequences of the offense or duty undergo some deprivation of state-powerful nature of the offense;

- The legal responsibility - a measure of state compulsion for offenses related to the enduring guilty of deprivation of personal (institutional) or material nature. Some say - the application of measures of state coercion.

Frankly, I do not see much contradiction in these two versions of the concept of responsibility.

Responsibility - a measure of state coercion. On the other hand, the responsibility - it is a duty, it is an additional obligation. Therefore, both concepts seem to me to be correct.

I think in the literature is given exaggerated attention distinction between "commitment", "duty" and "responsibility." Young scientist VA Pokutny most of his research on the vicarious liability dedicated delineation of these concepts. And he came to the paradoxical conclusion that "responsibility is neither an obligation nor a duty, it is completely independent institute of law, the institution that goes beyond the purely" private law, unlike the obligations and responsibilities ".

This conclusion is based on an incorrect and dogmatic opposition of concepts [4].

I remember, in his PhD thesis in 1966 (40 years ago) I enthusiastically engaged distinction between "obligation" and "duty" and was very proud when I managed to prove that the obligation - a relationship, but an obligation - a subjective obligation of the debtor, contrasted with the subjective right to legal relationships referred to as an obligation. And in no other way, I would not agree to understand it.

Now, after some time, I take it more relaxed and not trying to clarify to the end and contrast. I understand the relationship between these concepts so. Obligation - civil legal relationship between the debtor and the creditor. Duty - a subjective obligation of the debtor, together with the subjective component of the right lender content of the obligation. At the same time, there is the concept of "the obligation of the debtor." This concept is equivalent to the concept of "duty of the debtor". Responsibility - it is also the obligation, the obligation not only to the main and additional arising between the same debtor and creditor. Liability may also be the responsibility of the debtor in the supplementary Relationship - a liability. Penalties applied in various fields of law, have a common nature, common features and content. This is what allows us to formulate a unified concept of responsibility as general legal category.

More difficult is the case with extended (mainly B.T. Bazylev) proposal is considered legally responsible as a special law enforcement institutions throughout the legal system, the components of which are the legal responsibility of trade institutes and industry law. Subject to regulation by the Institute is the responsibility of a certain type (b) public relations, namely enforcement relations arising from offenses (tort relations).

Controversial positions B.T. Bazylev is that the proof of the existence of liability as a legal category does not signify the existence of it as a general legal institution. This requires a unified and separate system of rules on liability. At the same time doubt the feasibility of establishing a legal framework or code of legal liability, as have difficulties relations with industry laws and regulations on liability. And most importantly, B.T. Bazylev completely sidestepped the question of how the common law institution of responsibility is so wide that it even includes an independent branch of law as it relates to the existing legal system [5].

Meanwhile, the only real opportunity to prove the existence of such an institution is in recognition of its comprehensive institution located in a different legal system, different from the existing branch system. In the literature suggests the existence of a legal system structure, where the main subsystems are regulatory and security guards, but this structure or considered as an ideal or included in the basic structure (and then dividing into branches, sub-branches, institutes) or deemed appropriate division into substantive and procedural law.

Apparently, the true is the idea that the structure in question actually exist in the legal system. However, it can not be linked directly with the existing branches of the law, because they do not fit within this framework. There are, in particular, industry (civil, administrative and legal, etc.), which include both regulatory and guarding subsystem. More correctly identify the location of this structure on a different plane than the division into the field of law, but then it will be another parallel, additional structure in the legal system. Institute of liability can only be defined in the rules governing the law relationship. In this system, it must be coordinated with the operational penalties or other remedies. Legal norms in this parallel system should be divided into two large subsystems: regulatory standards and enforcement. Institute of responsibility would become one of the institutions subsystem law norms. Institutions were under the responsibility of the norms of criminal liability, civil, administrative, disciplinary and other types of liability. In the basic system of law now existing, these rules form the respective institutions branches of law (civil, administrative, labor), and the rate of criminal responsibility is the primary system independent branch of law.

Made provisions are, however, highly controversial in the general theory of law and require additional independent analysis. For us it is important that the unity of the rules on the various types of responsibility put on the agenda the question of the formation of a single general legal liability of the Institute. In order to understand the concept of civil liability, it is necessary to define its place in the system of protection of civil rights and its relation to civil penalties. This question is one of the most controversial in the legal literature. Moreover, the range of opinions is great - the recognition of sanctions and liability protections of rights to the recognition of protection measures overlooking responsibility. The same range of opinions exists on the relationship between the concepts "sanctions" and "responsibility".

Several authors have identified these concepts, offering to consider sanctions such consequences of the offense, which is a form of responsibility for the offense. Others believe that the responsibility - it is the application of sanctions . According to the third responsibility is a specific type of sanction. In considering this question, we must first of all be noted that the term "sanctions" has many meanings. It is used in different ways: approval (authorization), social norms and Resolution (sanction the prosecutor for the arrest or search); the name of the legal rule or contract, which provide guidance on the adverse consequences of their violation; this very adverse effect actually arrived. Moreover, in practice, often the term "sanction" is identified with the word "penalty" and sometimes with a "loss." Often say more about the "penalty" and the "pecuniary sanctions." Moreover, the term "penalty" means a penalty usually (fines and penalties), and the term "property penalties" are when it comes to collecting and penalties and damages.

It seems to me that the common argument in the literature that the concepts of "sanctions" and "responsibility" is to some extent a dispute about the terms. Authors, putting in the same terms different content, understand the term "sanction" in one sense or another, in which the term may be used. Therefore, the proper solution of the issue would contribute to the uniform application of terms. Apparently, the best will in the civil law to use the term "sanction" in the sense in which it is used in the general theory, i.e., to represent an item norms indicating the legal consequences of its violation, and to refer to themselves these consequences. Accordingly, under the sanction of civil law is to be understood the legal consequences that the norm sets or allow for violations of civil rights.

With regard to the relationship between the concepts "sanctions" and "responsibility", the "responsibility" should be regarded as a kind of sanction. Therefore, as I have argued for more than thirty years ago, we should distinguish the sanctions that can be qualified as a measure of civil liability and sanctions that are not (enforcement of previously unfulfilled obligations inducement to actual performance, failure of performance of the obligation).

Hallmarks of operational sanctions from liability are as follows:

- Firstly, for use liability important fault. Liability is incurred if found guilty. Liability without fault is considered as an exception to the general rule. In applying the operational sanctions indication of fault is indifferent. Wines can be cannot be operational sanctions are applied regardless of fault, it is sufficient objective grounds: unlawful and causation;

- Secondly, the measures shall be imposed in the jurisdictional basis; to recover a penalty or damages, the injured party must apply to the court; even voluntary payment of a penalty is carried out under pain of possible foreclosure of her in court. Operational approval in some cases require the use of state coercion (e.g., awarding his duties in kind). But many of the operational sanctions are applied to the entitled party alone, without recourse to the courts (for example, failure to perform the contract, failure to reciprocal obligation, retention). As such, they are included in the concept of self-defense.

- Thirdly, sanctions are punitive, conviction for an offense involve the imposition of penalties on the offender, the imposition of additional obligations on it, which was not in the content of the primary obligation to its violation. Operational sanctions do not focus on the scope of derogation property of the offender, and to restore the property of the authorized person; the latter does not impose on the offender an additional obligation, and trying to get back what rightfully belongs to him (performance of an obligation, retention of property as payment due to him, the rejection of the contract, improperly executed, etc.).

Without going deeply into theoretical discussions about the concept of civil liability and operational sanctions can offer their definitions. Civil liability can be defined as a form of civil sanctions (acting as protection of civil rights), which lead to the violator of civil rights secured by state coercion additional adverse consequences in the form of additional civil liability, or deprived of their civil rights. Operational sanctions can be defined as a form of civil sanctions (acting as protection of civil rights), characterized by the absence of direct to reduce the scope of the offending property, and organizational impact, application regardless of fault, for the mere fact of the offense, a combination of state compulsion to self application of sanctions authorized person. In the legal literature it is widely believed that it is necessary to distinguish between measures of civil liability and protection of civil rights. This view can not be considered valid. It is necessary to distinguish between measures of responsibility and operational penalties. Safeguard civil rights - is a broader concept, covering all methods of protection, including sanctions and penalties operational.

Protection of civil rights - is the most broad term that includes all legal measures to ensure the integrity of the rights and the elimination of the consequences of the breach.

The composition of the protection of civil rights include civil penalties, including the effects of civil rights violations. In addition to the sanctions have security measures that do not involve unlawful infringement. They warn or offense (suppression threatened breach of law (prevention of threatened breach of law) or aimed at the protection of legal actions (for example, the need for recognition of the rights may arise not only as a result of unlawful actions; also indispensable, as a rule, is not related to the offense) [6].

Civil penalties are divided into property accountability measures and operational sanctions. Responsibilities. Contractual and non-contractual liability. The most common is the division of responsibility for contractual and non-contractual. And for non-contractual include everything that derives not from the treaty, but directly from the law. But eventually reduced to non-contractual liability liability arising as a result of the injury. Sometimes, however, here is added responsibility on the debtor's obligations arising from the public promise of reward, without the order of activities, unjust enrichment, etc. However, in general non-contractual liability under the responsibility of understanding of the injury, so honestly it is called tort liability. Meanwhile, the non-contractual liability as a motley and diverse that it cannot be combined into one group.

First of all, it is the responsibility arising from unilateral transactions. YG Basin named one of the types of such responsibility "Responsibility debtor's obligations arising from the public promise of reward." This responsibility has nothing to do with tort liability. It is much closer to contractual liability, and many carry her silently as if to contractual liability. In addition, there is a set of obligations, mainly related to vicarious liability: the main organization responsible in the event of bankruptcy of a subsidiary to the main fault of the organization (Sec. 2, Art. 94 CC RK); liability of the members of the general partnership, a partnership with the additional liability of production cooperative members for the debts of the company (Art. Art. 70, 84, 96 CC RK), the responsibility of the owners - the founders of the debts of state-owned enterprises, institutions and government agencies (Art. Art. 44, 207 CC RK).

It is also non-contractual but nothing tort they have not. Much more in common with their contractual responsibility. I think that on the grounds of liability is better to share than the contractual and non-contractual, and liability arising from the breach of an existing relationship, and responsibility, which is itself a newly emerging relationship.

In Kazakhstan legislation competition claims allowed only as an exception in cases expressly established by legislative acts (for example, in the protection of the rights of citizens-consumers in the cases of their property damage caused by faults sell their goods). In other cases, competition claims inadmissible. This means that if a dispute arises from the contractual relationship, the claim may be brought only in respect of contractual liability. You cannot make a claim for compensation for non-contractual damages. You cannot use standards obligations of redress.

The courts do not always comply with this rule. For example, in one case, which was seen in Almaty, the plaintiff, who was unable to recover the amount awarded to him from the defendant - the Italian company (due to lack of agreement on legal assistance between Kazakhstan and Italy), sued the parent company - an American company, which had assets in Kazakhstan, claiming that she, too, was involved in the contract which has not been executed. The court allowed the claim, and applied art. 932 Civil Code of the Republic of Kazakhstan on joint and several liability for the damage caused together. It is fundamentally wrong, since the dispute arose from the contractual relationship between the parties, and the application in this case the provisions of tort liability is unacceptable.

Literature:

1. Civil law. Volume 1 Textbook. Ed. Sixth. Ed. A.P. Sergeev, YK Tolstoy. M .: OOO "TK Welby", 2002, pp 647.

2. Ioffe O.S. Liability law. M .: jurid. Lighted., 1975. S. 98-99.

3. Osipov E.B. Protection of civil rights. Educational and practical guide. Almaty, Kazakh State Law University, 2000, pp 48-49; his own. Common questions of liability in civil law. Tsivilisticheskoy note. Interuniversity collection of scientific papers. M .: Statute, 2001, pp 316-318.

4. Civil law. Volume 1. The textbook for high schools (academic course). Ans. Ed. M.K. Suleimenov, J.G. Bassin. Almaty: 2000, pp 647.

5. Braginsky M.I. Vitryansky V.V. Decree. Op. S. 636, 676-694.

6. This writes V.V. Vitryansky (see .: Braginsky M.I. Vitryansky V.V. Contract Law. Book One: General Provisions: Ed. 2nd. M .: Statute. 2003, pp 635-636).