KAZAKHSTAN LEGAL SYSTEM
The legal system of the Republic of Kazakhstan, along with, mainly continental, countries, is built on the traditions of the Romano-Germanic (Continental) legal system. Unlike the Anglo-Saxon legal system (England and USA), where legal precedents are primary sources of law, the Continental system has a unified hierarchy of written legal sources.
The principal source of law in the Romano-Germanic legal system is the Constitution which is the main law and has the supreme legal force.
The Constitution of the Republic of Kazakhstan was adopted by the national referendum on 30 August 1995, the day celebrated as a national holiday.
Pursuant to Article 4 of the Constitution of the Republic of Kazakhstan, the effective laws of the Republic of Kazakhstan are the provisions of the Constitution, laws complying therewith, other regulatory legal acts, international contractual and other commitments of the Republic of Kazakhstan and regulatory resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan.
The hierarchy of the sources of law in Kazakhstan is determined by the Law of the Republic of Kazakhstan On Legal Acts of 6 April 2016. Pursuant to Article 10 of the Law, the Constitution of the Republic of Kazakhstan has the highest legal force. Following the Constitution, all regulatory legal acts have the following hierarchy:
1) laws amending the Constitution;
2) constitutional laws of the Republic of Kazakhstan;
3) codes of the Republic of Kazakhstan;
4) consolidated acts and laws of the Republic of Kazakhstan;
5) regulatory resolutions of the Parliament of the Republic of Kazakhstan and its Chambers;
6) regulatory legal decrees of the President of the Republic of Kazakhstan;
7) regulatory legal resolutions of the Government of the Republic of Kazakhstan;
8) regulatory legal orders of ministers of the Republic of Kazakhstan and other heads of central government authorities, and regulatory legal resolutions of the Central Election Committee of the Republic of Kazakhstan, Accounts Committee for Control over Execution of the Kazakhstan Republican Budget, National Bank of the Republic of Kazakhstan and other central government authorities;
9) regulatory orders of heads of departments and agencies of central government authorities; and
10) regulatory decisions of maslikhats (local representative bodies), regulatory resolutions of akimats (local executive bodies), regulatory decisions of akims and regulatory legal resolutions of audit committees.
In the event of any inconsistency between the provisions of different-level regulatory legal acts, the higher-level acts prevail. When Kazakhstan laws conflict with Kazakhstan codes, they may be applied only after the incorporation of appropriate amendments into such laws.
In the event of a conflict between the provisions of one and the same regulatory legal act or between the provisions of the same level regulatory legal acts, the provisions of the later introduced act or the provisions corresponding to the later introduced act prevail.
All acts of the Chairman of the Security Council of the Republic of Kazakhstan and regulatory resolutions of the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan do not fall within this hierarchy. Regulatory resolutions of the Constitutional Council of the Republic of Kazakhstan are based only on the Constitution of the Republic of Kazakhstan and no other regulatory act may contradict them.
International treaties ratified by Kazakhstan have priority over the laws of Kazakhstan and are applied directly, save for where it follows from an international treaty that adoption of a law is required in order for such treaty to become applicable in Kazakhstan. Therefore, the recognized principles and provisions of international law constitute an integral part of the legal system of the Republic of Kazakhstan which may be appealed to by any and all persons and entities.
The basic civil law principles are set out in Article 6.1 of the Constitution of the Republic of Kazakhstan, whereby public and private property are equally recognized and protected in Kazakhstan. The central regulatory legal act in the field of civil law relations is the Civil Code of the Republic of Kazakhstan which consists of two parts –General and Special. The General Part was adopted on 27 December 1994 and entered into force on 1 March 1995. The Special Part entered into force on 1 July 1999. Even though both parts of the Civil Code have long been in force, they are being continuously improved and still undergo changes and amendments.
The General Part of the Civil Code governs such matters as legal status of individuals and legal entities, transactions, property rights, general provisions on obligations and contracts. The Special Part of the Civil Code contains provisions governing specific types of obligations (e.g. sale and purchase, gifts/donations, lease, contracting, etc.), as well as the matters related to intellectual property rights, inheritance and international private law.
The following regulatory legal acts could be singled out from the totality of regulatory legal acts applicable to business activity in Kazakhstan, along with the Constitution, Civil Code and Entrepreneurial Code of the Republic of Kazakhstan:
- Law of the Republic of Kazakhstan On Joint Stock Companies of 13 May 2003;
- Law of the Republic of Kazakhstan On Limited and Additional Liability Partnerships of 22 April 1998;
- Law of the Republic of Kazakhstan On Rehabilitation and Bankruptcy of 7 March 2014; and
- Law of the Republic of Kazakhstan On Business Partnerships of 2 May 1995.
Since 1 July 2006, Kazakhstan is the only CIS country that, by law, grants sole traders the right to participate in drafting and reviewing regulatory legal acts, draft international treaties of the Republic of Kazakhstan and international agreements which Kazakhstan is going to accede to that affect the interests of businesses. In particular, central government and local executive authorities submit draft regulatory legal acts affecting the interests of sole traders to accredited private business associations for their expert opinion to be issued in the form of recommendations and to be appended to the draft regulatory legal acts for their review and adoption, including subsequent discussion of the drafts with the appropriate government authorities.