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Agreements on transfer of property for use by civil law of the Kyrgyz Republic
Section 12. Science of law
Arabaev Cholponkul Isaevich, Corresponding Member of the National Academy of Sciences of the Kyrgyz Republic, Doctor of Law, Professor E-mail: [email protected]
Agreements on transfer of property for use by civil law of the Kyrgyz Republic
Abstract: In the article author deals with agreements on transfer of property for use by the civil law of the Kyrgyz Republic. Keywords: transfer of property, agreements, civil law, property lease.
slight difference. In particular, in the CIS countries (the Civil Code of the Russian Federation, the Civil Code of the Republic of Kazakh-
In the context of the developing market economy of Kyrgyz-stan, any citizen, businessmen, foreigners, arriving in the Kyrgyz Republic as investors and other entities conclude agreements for business activities, organization of production and exchange of goods between the various parties, as well as for other activities, covering many aspects of economic, social and cultural life of the society, based on the laws of the Kyrgyz Republic.
At the functioning of market relations, the legal relationships occur between the persons at civil law as an act based on the free will of the parties and, subsequently, to be executed by the civil law agreement. The term "agreement" in the science of civil law is used in different meanings. Without going into discussions on the category of the agreement [1; 2, 26; 3; 4], it should be noted that this is, first of all, a legal fact, an obligation and a document, a fixed fact of establishment of debt relationship, a kind of transaction, etc. However, the concept behind this term is disclosed in the Civil Code of the Kyrgyz Republic (hereinafter referred to as the Civil Code of the Kyrgyz Republic).
In accordance with Art. 381, Para. 1 of the Civil Code of the Kyrgyz Republic, the agreement refers to consent between two or more persons on the establishment, modification or termination of civil rights and obligations.
The agreement is the basic legal institution of civil law, which uses more than half ofthe existing civil law. According to M. I. Bragin-sky, "the main purpose of the agreement is to regulate the human behaviour within the law by reference to the limits of their possible and proper behaviour, as well as the consequences of violations of the relevant requirements" [5], and to our opinion this is the key essence of the civil law agreements.
Among the civil law agreements and the agreements, which are systemic for market economy, there are the agreements on transfer of property for use. They should include the entire complex of agreements such as a property lease (rental) agreement, residential lease agreement, gratuitous use (loan) agreement stipulated by the Civil Code of the Kyrgyz Republic.
The concept of "property lease (rental)" is one of the key aspects in the agreements on transfer of property for use, which requires a particular attention. Therefore, the analysis of legal literature on this issue leads to the conclusion that a similar agreement in the Russian Civil Code is used in reverse order: rental (property lease) agreement. In the analysis of the civil codes of France, Germany, Switzerland, the concept of the rental and the property lease has
stan, the Civil Code of the Kyrgyz Republic), and in the non-CIS countries (the Civil Code of France, the Civil Code of Germany, the Civil Code of Switzerland) the concepts of "property lease", "lease", "rental", as well as "lender" and "lessor", "lessee" and "tenant" are used as identical concepts. In the Civil Code of the Kyrgyz Republic, the concepts of "property lease" and "rental" are used synonymously.
The property lease agreement is the widespread agreement, the main purpose of which is the effective integration of property into civil circulation without transfer of right of ownership and the meeting of the vital needs by the temporary use of property or the receipt of property benefits by such temporary use. Under this agreement, the tenant also receives a possibility to use the property in respect ofwhich he/she has no possibility or no need to acquire the right of ownership. The property owner receives benefit by transferring the property, which is temporarily unnecessary or designated for this purpose.
According to the Article 542 of the Civil Code of the Kyrgyz Republic, a property lease (rental) agreement is an agreement by which one party (the lessor) undertakes to provide the other party (the lessee) with the property for payment for temporary possession and use or for temporary use. It follows that this agreement is the consensual, commutative, mutual and bilateral civil law agreement.
The parties of the agreement are the lessor (the property owner only, as well as the entities authorized by law or by property owner) and the lessee — any legal person (Article 546 of the Civil Code of the Kyrgyz Republic). The objects of the property lease agreement are the land plots, subsoil plots and other separate natural sites, enterprises and other property complexes, buildings, structures, equipment, vehicles and other items that do not lose their natural properties in the process of their use (nonexpendable items). The other types of property, which are prohibited or restricted for property lease, may be established by law (Para. 1, Art. 543 of the Civil Code of the Kyrgyz Republic).
The essential terms of the property lease agreement, stipulated by the Civil Code of the Kyrgyz Republic, are the condition of scope of agreement and it should specify the data enabling to identify the property to be transferred to the lessee as an object of property lease. In accordance with the Article 545 of the Civil Code of the Kyrgyz Republic, the agreement shall be made in writing; in case of the subsequent transfer of right of ownership of the property to the lessee, it
Section 12. Science of law
shall be concluded in form, required for the purchase and sale agreement of such property. The lease period is usually definite. Nevertheless, the period is not an essential term of the agreement; therefore, it is permitted to conclude the agreement for an indefinite period.
However, it should be taken into account that the Civil Code of the Kyrgyz Republic stipulates a certain termination procedure of the agreement, concluded for an indefinite period. Each party has the right to refuse such agreement at any time by notifying the other party three months in advance at the lease of immovable property, and one month in advance at the lease of other property, unless otherwise is specified by the legislative acts or the agreement.
The types of the property lease agreement with some inherent characteristic features, which enable to allocate them separately, are the hire agreement, vehicle rental agreement, enterprise rental agreement, as well as the building or structure rental agreement, finance lease (leasing) agreement, which became available upon the adoption of the new Civil Code of the Kyrgyz Republic.
In accordance with the Civil Code of the Kyrgyz Republic, the hire of residential accommodations as a type of the agreement on transfer of property for use had an independent legal development due to the mandatory participation of the citizens. According to the Article 609 of the Civil Code of the Kyrgyz Republic, a residential lease agreement is an agreement whereby one party, the owner of the residential accommodation or the authorized person (the lessor), undertakes to provide the other party, the citizen (lessee) and the members of his/her family, with a residential accommodation in possession and use for payment. The agreement is consensual, bilateral, compensated, termless; in some cases the agreement may be concluded for a definite period (for example, an office accommodation may be provided for the period of work or a hostel — for the period of study at an educational establishment). The parties to the agreement are the lessor (an owner citizen or a housing management organisation, company, organization), the lessee (a citizen to be provided with the residential accommodation).
The scope of the residential lease agreement, as a rule, is a residential accommodation, an apartment or a duly isolated residential accommodation (apartment in an apartment building, residential unit, a part of an apartment or a residential unit) consisting of one or more rooms for accommodation; it should be comfortable regarding to the conditions of the settlement, comply with the established sanitary and technical requirements. In accordance with the residential lease agreement, the lessee and his/her family members shall use the residential accommodation or apartment only for its intended purpose.
The residential lease agreement shall be made in writing. The necessity of the written form is in the preparation and signing of the residential lease agreement. The parties' failure to comply with the written form of the agreement shall not entail the invalidity of the agreement, however, it shall deprive the parties of the right to refer to the agreement and its terms for testimony in case of dispute, but shall not deprive them of the right to give written and other evidence (Article 178 of the Civil Code of the Kyrgyz Republic).
Another type of the agreement on transfer of property for use is the gratuitous use agreement. In the everyday speech, the gratuitous use agreement as the term "loan" is more often used in relation to the loan agreement and seemingly refers to credit and settlement obligations, but in fact the term "loan" came to mean not a loan, but namely the provision of property for gratuitous use [2, 392], therefore it is named the property gratuitous use agreement in real life.
In accordance with the Article 610 of the Civil Code of the Kyrgyz Republic, a gratuitous use agreement (loan agreement) is an
agreement, whereby one party (the lender) undertakes to transfer or transfers an item for gratuitous temporary use to the another party (the borrower), and the latter undertakes to return the same item in the same condition he/she had received it, taking into account normal wear and tear, or in the condition, stipulated by the agreement. The gratuitous use agreement (loan agreement) is gratuitous; it can be consensual (in this case — bilateral), it can be real (in this case — unilateral) agreement.
The gratuitousness of the agreement is that the parties set pure trust relationships. The owner, transferring the authority to use the property to another person under agreement, receives no any financial compensation, equivalent, for it. The very gratuitous nature of relationships between the parties, involving a moral element, as in the donation agreement, makes a unique impact on the rights, obligations and risks of the parties or on the subject composition [4]. In addition, the gratuitous use (loan) agreement on obligation subject is close to the lease and regulates the relationships of obligation on gratuitous use of property. There is a similarity of this agreement with the donation agreement and a difference from the property lease agreement.
In the Soviet legal literature, the loan was even considered as a kind of donation [7], because there was a great similarity between the donation agreement and the loan agreement, since in the first case, the property is transferred to the ownership, and in the second case, the property is transferred for temporary use. As in the property lease agreement, the property (item) is also transferred for temporary use for free, the separate laws of the Civil Code of the Kyrgyz Republic, regulating the relations of property lease, apply to the loan agreement. The gratuitousness of the agreement also explains the increased borrower's responsibility for the safety of the item, associated with the transfer to it of the risk of accidental loss or accidental damage.
The gratuitous use (loan) agreement is used in various fields, in particular, based on sympathy, compassion, memory of moral duty and other feelings usual for a person, educational, charitable and other socially important objectives in the field of culture and art, and other cases. The most important constitutive feature here should be the gratuitousness.
The parties of the gratuitous use (loan) agreement may by any civil law entities, referred to as the lender (both the owner of the item loaned and the persons authorized by him/her, law and the owner) and the borrower (as a general rule, any person in need of the property for use). By subject composition, the legislator makes a unique restriction by Paragraph 2, Article 611 of the Civil Code of the Kyrgyz Republic, which states that a commercial organization has no right to transfer items for gratuitous use to a person, which is its founder, participant, shareholder, director, member of its management or control bodies. The gratuitous use (loan) agreement, concluded in violation of this rule, shall be invalid.
The scope of the gratuitous use (loan) agreement can be the individually defined, any nonexpendable items that are not withdrawn from the civil circulation. The term of agreement, approved by the parties, is an essential condition. If the term is not defined, the agreement shall be considered as concluded for an indefinite period. Besides, at the end of the term, the borrower continues to use the item in the absence of objections from the lender; the agreement shall be considered as renewed for an indefinite period. In the agreement, concluded for an indefinite period, the parties shall be entitled to refuse the agreement by notifying the other party a month in advance, and in case of the agreement with a definite term, only the borrower shall use this right.
Consumer protection in voluntary insurance relations: compared overview
Based on the above, one can conclude that the form of the gratuitous use (loan) agreement is determined by the general rules on the form of transactions, stipulated by the Civil Code of the Kyrgyz Republic. However, it should be noted that the Chapter 29 of the Civil Code of the Kyrgyz Republic contains no specific provisions dealing with the form of the gratuitous use (loan) agreement. Nevertheless, according to the Paragraph 3, Article 610, of the Civil Code of the Kyrgyz Republic, a number of rules, specified in Article 543, Article 547, Paragr. 1 and 2, Article 548, Paragr. 2, Article 552, Article 560, Paragr. 2, Article 562, Paragr. 1 and 3 of the Civil Code of the Kyrgyz Republic, shall be applied to the gratuitous use agreement.
Despite the rules of the Civil Code of the Kyrgyz Republic listed above, dealing with the agreements on transfer of property for use, the author's conclusions indicate that the civil law agreements, in general, are not only the major cause of occurrence of obligation, but also the institution, playing a major role in private-law relations of modern society, requiring a clear legislative consolidation.
Thus, the subject of study in this article were the theoretical problems of agreements on transfer of property for use according to the Civil Law of the Kyrgyz Republic. The article contains the scientific analysis and research of the current state of the property lease (rental) agreement, residential lease agreement, gratuitous use (loan) agreement, which attract the attention of scientists to the fullest extent and require not only theoretical understanding, but also practical significance. The author's conclusions shows that the civil law agreements are not only the major cause of occurrence of obligation, but also the institution, playing a major role in private-law relations of modern society, requiring a clear legislative consolidation.
This position is clearly confirmed in the scientific research by M. I. Braginsky, who notes that "the purpose of the agreement is that it serves as a basis for occurrence of obligations" [8]. The agreement on transfer of property for use has the same important role by operating, protecting and ensuring the objectives and goals of the civil law liabilities within the Civil Law of the Kyrgyz Republic.
References:
1. Novitsky I. B., Luntz L. A. General doctrine of obligation. - M.: Gosyurizdat, 1954. - P. 94.
2. Ioffe O. S. Law of obligations. - M.: Gosyurizdat, 1975.
3. Braginsky M. I., Vitryansky V. V. Law of contracts. - M., 1998. - P. 13.
4. Golovanov N. M. Civil law agreements. - St. Petersburg, 2002, - P. 9 et al.
5. Braginsky M. I., Vitryansky V. V. Law of contracts: General provisions. - M.: Publishing office "Statut", 1998. - P. 9.
6. Alekseev S. S. Civil Law. - M., 2004. - P. 227.
7. Peretersky I. S. Transactions, agreements. - M., 1929. - P. 64.
8. Braginsky M. I., Vitryansky V. V. Contractual law. General provisions. - M.: publishing office "Statut", 1998. - P. 15.
Jahollari Heralda, Msc., PhD candidate Business Law, European University of Tirana E-mail: [email protected]
Consumer protection in voluntary insurance relations: compared overview
Abstract: In order to protect the consumer, in a voluntary insurance relationship, the Albanian legislator has provided a set of rules and obligations for companies, which operate in the Albanian insurance market. In compiling the new law 12 EU directives were taken into consideration, which were adopted in the area of insurance law. Keywords: insurance law, approximate legislation, consumer protection.
Protection of the consumer, considered as the weaker party in a business relationship, is an obj ective that lies at the very center of attention of the regulatory authorities, whether at national or international level. The following article will deal with consumer protection in the insurance field, taking a comparative view between the rules that exist in Albania and those countries that are part of European Union law or, otherwise said, part of the acquis communautaire.
Whether consumer interests are well protected or not, can be seen in several aspects of insurance activities. In this regard, we can say that the Albanian legislation has been sufficiently completed, with law no. 52/2014 "On the insurance and reinsurance", which was recently adopted, although there is still need for improvement. Starting with Article 1, the law stipulates that consumer protection and the creation of favorable conditions is one of the key objectives, sought to be achieved. Thus, Article 1 provides that the law no. 52/2014 regulates the establishment, operation and supervision of insurance, reinsurance and broker companies, so that the insurance market operates in a safe, stable and transparent way, in order to assure protection of consumer rights and interests. The consumer is
widely perceived as any person who uses or benefits from the services offered by the insurer or broker.
Changes in domestic legislation in terms of requiring a more effective protection of the rights of clients, can be observed if we compare law no. 52/2014, approved recently with law no. 9267, dated 29.07.2004, "On the insurance, reinsurance and insurance and reinsurance intermediary" that was implemented for a period of ten years, before being repealed by law no. 52/2014. The scope of Law no. 9267 was setting the general principles and rules for insurance and reinsurance companies in the insurance and reinsurance mediation and supervision of state entities that undertake and perform activities provided in this law. So, consumer protection was not provided as a specific goal, in the law passed in 2004.
The inclusion of new provisions, which place the client at the center of attention, in the law no. 52/2014 is undoubtedly the consequence of efforts to align domestic legislation with the acquis communautaire, in the context of Albania's efforts to join the European Union. Thus, one of the prerequisites that a company must meet, in order to be granted the required license to conduct insurance activities, is to present a document containing the company's
