Concretization of civil law in the judgment: the experience of the Republic of Kazakhstan

Abdrassulov E.B., Head of Division for Exploration of the judicial system
 of Supreme Court of Kazakhstan, Doctor of Law, Professor

Concretization of the law provided, as is well known, in the process of law-making and enforcement. As a result, it becomes possible to specifying the maximum certainty and complete meaning of legal norms made ​​possible as a result of the use of means of interpretation, detail, refinement and development of certain elements of the rules in order to accurately and fully legal regulation. Concretization of legal norms in the process of law-making by classic edition bylaws usually does not cause questions about the legality and feasibility of such a procedure during which the processing of certain content standards, so it becomes more specific.

The law specifying matters always led and lead sometimes to heated debate in the sense that it causes some scholars and practitioners concerns about the fact that the law enforcement authorities in the process of concretization can go beyond their competence, unreasonably narrowed or expanded scope of the right. However, the concept of detail is considered by most researchers as a necessary element of law enforcement practice process. The rules of law are implemented in specific actions subjects apply to specific situations. Therefore, in the implementation and enforcement in particular, there is a need to specify certain substantive elements of the rule of law expressed in general and abstract, and thus bring the contents of the law to specific situations. In the application of the general rules of the language are translated into more specific statements, no doubt on the relevance of the applicable rule to this situation is to be legally allowed [1]. This is necessary because the legislator at all desire can never reveal any or resolve all the variety of problems. In the legal literature rightly pointed out, that in life there is an inherent conflict between the desire to direct social relations in a certain way through the clear, definite, consistent and reasonable rule of law and the inability to do this. On the one hand, we want clarity and simplicity compliance. On the other hand, it turns out that when we set the rules of law, the need for simplicity rules comes into collision with the complexity of human experience. This suggests that life is always more complex than those forms of law, which we set. Resolving this contradiction is mainly done through the specification, judicial discretion, interpretation of the law, which often border on right-conferring. It is through these institutions, along with direct law-making, largely made ​​up our legal system.

This is especially true due to the fact that today raises the question of the discretionary powers of the courts as a guarantee of independence and effectiveness of the judiciary, including the need to consider the powers under the rules adopted by the legislator (or not to apply certain types of punishment, to determine the amount of compensation for moral damage, etc.), the authority on matters which are not regulated by the legislator, when the judges reveal the deeper meaning of the constitutional principle of the independence of the court. Naturally, the discretionary powers often implemented in judicial practice, in the process of judicial acts, which may border on its content lawmaking.

Equally important for the judicial practice has uniformity in understanding of the various definitions and legal terms used in the application of civil law court. It is the highest judicial authority belongs to the role of establishing the limits of understanding text of the normative legal act in the development of such definitions. This special role of the Supreme Court of Kazakhstan is determined by the fact that civil law contains a huge amount of evaluative concepts, vague expressions containing quantitative and qualitative characteristics (reasonable time, the extended period, to the benefit of, a fundamental breach without delay, etc.), or terms that have no precise legal definition of (civil turnover, custom, small domestic transactions, etc.). Formulation of definitions and explanation of the meaning of various categories of civil law is a very difficult, demanding enormous intellectual effort and a broad doctrinal approach occupation, but it is inevitable, and, unfortunately, more criticism than objectively assessed. In connection with the introduction of new civil legislation regulating often completely unknown before civil legal relations, there is an urgent need for accurate and precise determination of the essence of legal phenomena by formulating clear concepts and definitions. Such work is usually done through the adoption of regulatory decisions of the Supreme Court of the Republic of Kazakhstan. However, specification of civil law and is provided through the adoption of judicial acts in a particular case, which is not entirely a new phenomenon in the jurisprudence of Kazakhstan. Facts of taking motivated court decisions with the correct specification of individual concepts, evaluation of expressions, which is produced during the analysis of these concepts with the establishment of the findings by the rules of formal logic and analogy, there are already a relatively long period. So, an example of incorrect specification was the interpretation of the concept "student", under which the Civil Division of the Western Kazakhstan Oblast Court only considered students by excluding students from this notion. Civil Division of the Supreme Court of the Republic of Kazakhstan, quashed the judgment as follows to ensure the correct specification: "Withdraw the board that according to Art. 72 LCD right to living space is retained for study only for students, but not for schoolchildren, not based on the law and does not follow from the case. In accordance with Art. 72 LCD a living space reserved for citizens in cases out to study at all times during training. And this law does not specify what kind of learning involved (school, college, graduate school, etc.). Consequently, under the study refers to all kinds of training, during which the citizen retains the right to a living space".

Thus, the achievement of unity of judicial practice in civil cases not only promotes the adoption of regulatory decisions by the Supreme Court, but also the use of the courts of lower instances in the application of civil law the results of its consideration of individual cases in the first instance and in the order of supervision, which reflect the legal positions of the highest judicial authority.

An example is the case on the claim of LLP "Vostokpromkomplekt" to JSC "Corporation" Kazakhmys" for the recovery of the amount due for the equipment supplied. By the decision of the specialized Interdistrict Economic Court of East Kazakhstan region on March 20, 2003 the claim was satisfied. Resolution of the Civil Chamber of the East Kazakhstan Regional Court on April 25, 2003 judgment of 20 March 2003 upheld, the appeal of the defendant's claim. Resolution of the supervisory board of the East Kazakhstan Regional Court on August 14, 2003 decision of the Court of First Instance of 20 March 2003 and the decision of the appellate court on April 25, 2003 remain unchanged, and the prosecutor dismissed the field. Judicial board on civil cases of the Supreme Court of the Republic of Kazakhstan took the case to the supervisory procedure. In protest, the Deputy Prosecutor General of Kazakhstan asked the Supreme Court of the Republic of Kazakhstan to reconsider the above judicial acts and make a new decision to dismiss the claim. In support of the protest pointed out that, contrary to the agreement of November 8, 2000 and the Regulations "On the procedure for acceptance of products and goods in quantity and quality" of the plaintiff's goods are received by unauthorized employees of the defendant in receipts. This indicates that the transaction was actually committed in non-consensual manner between the plaintiff and individuals. Case materials, the judicial board on civil cases of the Supreme Court of RK found it necessary to protest disallowing the following reasons. The court took into account that actually branch "Vostokkazmed" of JSC "Corporation" Kazakhmys" received from the plaintiff's material assets and a portion of said equipment and spare parts for machinery was installed and operated, and the other part was on the wealth stock. As a result, specifying art.272, 439 CC of RK the Supreme Court of RK concluded that the buyer must pay to the seller the cost of the goods received, as improper execution of delivery and transmission may not indicate that the supply of goods is not made ​​at all. Currently confirms that specification, implemented by the Supreme Court is necessary, as in the application of civil law courts of different instances can be different assessment of the circumstances of the case, which involves a different application of the law.

Indicator of the judgment, which are specified subjective rights of individuals and legal entities, is a decree of the Civil Chamber of the Supreme Court, which March 12, 2005 to cancel the East Kazakhstan Regional Court of in November 12, 2004 on the refusal to accept the claim of tax committee of the city of Semipalatinsk to JSC "Semipalatinsk TPP" of recovery of the amount of arrears to the budget. Refusal to accept the claim, the court reasoned that art.154 -156 Code of RK on taxes and other obligatory payments to the budget provided for non-judicial foreclosure of tax debts and other financial obligations to the state taxpayer. Supreme Court of RK declared the decision as a mistake, because these articles of the Code specify the procedure for compulsory collection of tax debts and other obligations of the taxpayer, as well as ways to ensure the payment of such, however, the use of these measures is the right of the tax authority, not an obligation. Moreover, the law does not indicate that the failure to exclude the possibility of the right to appeal to the court. [2] On this decision of the Civil Chamber of the Supreme Court of Kazakhstan, published in the review of jurisprudence in civil cases, the judge later guided the lower courts when considering similar resolution and civil cases.

Often while pleading of Supreme Court of RK it is given an explanation of the law, which is refined and concretized. Civil Division of the Supreme Court of the RK  on June 6, 2002 quashed the decision of the court of Astana on April 8, 2002 for the return of the appeal of LLP "Kazakhstan Oil Company Al Tajir". Colleagues pointed out that the court complaints about returns because missing the deadline to appeal is erroneous, as the appeal court's decision in Astana on March 11, 2002 dated March 26, 2002, was put on the mail on the same day that confirmed by postal receipt. Resolution of the Civil Chamber of the Supreme Court of the Republic of Kazakhstan is motivated by the fact that according to Article 176 of the Civil Code of RK claim 1 and Part 2, Article 124, Part 2 art.125 GIC RK procedural action for which a set period of time may be hold up to 24 hours of the last day of the term. If the complaint, documents or money have been handed over to the post office, telegraph or transferred to other media up to 24 hours of the last day of the period, the period is not considered missed. For the case for 15 -day period to appeal began on March 12, 2002 and ended on March 26, 2002. The applicant has passed the complaint to the post office on March 26, the last day of the term, that is, in a timely manner, but she was wrongfully returned [3].

The most important feature of the judicial practice in civil cases is a creation of concretization law precedents interpretation by formulating legal provisions that can improve the legislation so that we can talk even about legal creative nature of jurisprudence. The results follow from the interpretation of the law, are the findings of the current legislation and are fixed in the jurisprudence, eventually getting to "elaborate on law regulations" that are part of the objective law. They can be formulated as the highest judicial body or a lower court in a particular case. But the decision rendered in a separate case, it becomes legal provisions only if it is accepted practice and serves as a model for the adjudication of cases uniform, kind of precedent on the interpretation [4].

Legal provisions as a result of specifying the rules of law in turn is based on an interpretation of the law, while at the same time goes on, bringing a new element to the enforcement process, and this is different from judicial interpretation.

Opponents of this view argue that the provisions of this theory contradict the instructions of law. So, Bonner A.T. notes that we tend to forget about the duty of the court to resolve civil cases on the basis of existing legislation, and not any "legal provisions", even if developed jurisprudence. "Legal provisions" cannot create binding rules, such as the norm is itself interpreted the law. [5]

In the legal literature ratio of the "interpretation precedents" (legal provisions) and regulations is widely discussed. A number of scholars, adhering position of equating of "interpretation precedents" to legal norms, they say that the most difficult cases in the reasoning of the court decision is necessary to refer not only to the provisions of the law, but also to acts of casual interpretation. N.N. Voplenko believed that court decisions in particular cases in court rulings can be invoked, and judicial review, prepared by the relevant higher courts, it is impossible to invoke on. "This is due to the fact that judicial review is not a source of law" [6]. The idea is certainly true. However, the same conclusion with even more reason can be attributed to the decisions of the judiciary in particular cases. Need to pay attention to the fact that the recognition of the mandatory "legal provisions", developed in the jurisprudence implies court order giving normative character, therefore, only a recognized practice can be a source of law. In the legal literature as confirm the validity of the theory is the definition of the legal provisions of law in terms of the concept of "human rights". In this context, the right - is not what is written in the law, it is a specific property and other satisfaction of the claims, which gets through the court party to the dispute. This concept suggests that it is judicial decisions are "live", that is really existing law. In view of this the court decisions are legal provisions in cases where become binding. For this reason, they are provided with the authority of the highest judicial body, its ability to cancel all the decisions that are contrary to these legal provisions. The example of the legal provisions, generated by jurisprudence, is the following: the transaction carried out with the use of computers is equivalent to writing a transaction which is meant in the art. 151, 152 of SC RK. This legal provision allows to freely use computers in property turnover. Summarizing the discussion about whether the legal provisions are independent legal norms or integral parts clarifying regulations, N.N. Voplenko concludes that the official interpretation is an integral component part of itself under interpretation rules. This statement caused a number of objections from various authors. So, P.E. Nedbaylo wrote: "Recognition of the interpretation part of the norm, no matter where it may come, opens up the possibility for changes in the content standards through interpretation, which may lead to arbitrary actions in their implementation". [7]

Independence of legal provisions established under specification of civil norms, also confirmed the nature of acts itself as an official interpretation of real-life, high-quality segregated system of legal acts. This idea is confirmed also in judicial practice.However, it should be noted that the independence of legal provisions established by official interpretation, has certain limits, which means that the act of concretization cannot substitute for a legal norm. It has no practical value in itself, but only in connection with the implementation of explaining norms. Despite a number of general points that bring together law enforcement and specification of lawmaking, legal provision, developed through the judgment cannot be used alone, the fundamental rules on the details which they are directed. They have the power and significance only during the term of the applicable rules and in the event of cancellation ceases its effect.
[1] See: Cherdantsev A.F. Interpretation of Soviet Law. M., 1979. p.6.
[2] Review of the study of appellate and supervisory practices of the Civil Chamber of the Supreme Court of the Republic of Kazakhstan for the first half of 2002 / / Bulletin of the Supreme Court of the Republic of Kazakhstan. - 2002. - № 8. - P. 26.
[3] Review of the study of appellate and supervisory practices of the Civil Chamber of the Supreme Court of the Republic of Kazakhstan for the first half of 2002 / / Bulletin of the Supreme Court of the Republic of Kazakhstan. - 2002. - № 8. - P. 26.
[4] A.B. Vengerov Theory of State and Law: Textbook. - M., 1998. - P.352.
[5] A.T. Bonner Application of regulations in the civil process. - M.: Legal Books, 1980. - P.154.
[6] N.N. Voplenko The official interpretation of the law. - M.: Legal Books, 1976. - P.105.
[7] P.E. Nedbaylo Application of Soviet Law. - M.: Gosyurizdat, 1960. - P.355.