3. Personal non-property rights shall be subject to protection irrespective of the guilt of the person that violated the right, unless it is otherwise stipulated in this Code. The person who presented a claim of defense must prove the fact of the violation of his personal non-property right.
4. The person whose non-property right is violated may at his discretion, claim from the violator the elimination of the consequences of the violation or at the expense of the violator to independently undertake the necessary actions, or to delegate their execution to a third party.
Article 142. Personal non-property rights which are associated with the property rights
In the event that personal non-property and property rights are simultaneously violated, the amount of compensation for property damage shall be increased by considering the compensation which is due to the victim because of the violation of his personal non-property rights.
Article 143. Protection of Honor, Dignity and Business Reputation
1. Through the court a citizen or a legal entity shall have the right to refutation of information which damages his (her) honor, dignity or business reputation, unless the one who spreads such information proves that the information is true.
2. Where the information that damages the honor, dignity or business reputation of a citizen or a legal entity is spread through the mass media, that information must be refuted by the same mass media without any charge imposed the aforementioned citizen or legal entity.
In the case where specified information is contained in a document issued by an organization, such a document shall be subject to replacement or annulment with the obligatory communication to the addressees of the inconsistency of the information contained in that document.
The procedure for refutation in other cases shall be established by the court.
3. A citizen or a legal entity with regard to which the mass media published information which restricts his rights or legitimate interests, shall have the right to publish their response in the same mass media free of any charge.
4. The claim by a citizen or a legal entity to publish a refutation or response in the mass media shall be considered by the court in a case where the mass media refused such publication, or did not carry out the publication within one month, and also in the case of its liquidation.
5. Where a court decision is not executed, the court shall have the right to impose a fine upon the violator, which shall be taken for the revenue of the budget. The fine shall be imposed in accordance with the procedure and in the amounts which are established by the civil procedural legislation. The payment of the fine shall not exempt the violator from the obligation to execute the action stipulated in the court decision.
6. A citizen or a legal entity with regard to whom information was spread that damages his (her) honor, dignity or business reputation, shall have the right, apart from the refutation of such information, to demand compensation for the damage and the moral harm inflicted by their promulgation.
Regulations of this Article to protect the business reputation of the citizen shall be relevantly applied in order to protect the business reputation of the legal entity, except for the requirements to compensate the moral harm. Regulations on compensation of the damages shall be applied to protect the business reputation of the legal entity according to the procedure, established by this Code.
7. Where it is impossible to identify the person that spreads the information which damages the honor, dignity or business reputation of a citizen or a legal entity, the person with regard to whom such information is spread, shall have the right to appeal to the court with an application to recognize that the promulgated information as not true.
Article 144. The Right to Protect Secrets of Private Life
1. A citizen shall have the right to protect the secrecy of his private life, including the secrecy of letter exchange, telephone conversations, diaries, notes, comments, sexual behavior, adoption, birth, medical secrets, legal secrets, and the secrecy of bank deposits.
The disclosure of the secrets of private life shall only be possible in the cases which are stipulated by legislative acts.
2. The publication of diaries, notes, comments and any other documents shall be permissible only with the permission of their author, and as regards letters, - with the consent of both their author and the addressee. In the case of death of one of them, specified documents may be published with the consent of the surviving spouse and the children of the deceased.
Article 145. The Right to Own Picture
1. Nobody shall have the right to use the image of a person's face without his consent, and in the case of his death, - without the consent of his inheritors.
2. The publication, reproduction and distribution of a graphic piece (picture, photograph, film etc.), in which another person is depicted, shall only be permissible with the consent of the depicted, and after his death, - with the consent of his children and surviving spouse. Such consent shall not be required where it is established by legislative acts or the person depicted was posing for a fee.
Article 146. The Right to Inviolability of Housing
A citizen shall have the right to inviolability of his house, that is, to prevent any attempts of intrusion into his house against his will, except for the cases stipulated in legislative acts.
Chapter 4. Transactions
Article 147. The Definition of a Transaction
The actions of citizens and legal entities which are aimed at establishing, changing or terminating civil rights and obligations, shall be recognized as transactions.
Article 148. Unilateral Transactions and Agreements
1. The transactions may be unilateral and bilateral or multilateral (agreements).
2. A transaction, the performance whereof, in accordance with legislation or the agreement of the parties, requires the expression of the will of one party and this is sufficient, shall be recognized as a unilateral transaction.
3. In order to enter into an agreement, it shall be necessary to have an expression of the agreed will of two parties (a bilateral transaction) or of three or more parties (multilateral transaction).
Article 149. The Legal Regulation of Unilateral Transactions
1. A unilateral transaction shall create obligations for the entity that enters into the transaction. It may create obligations for other persons only in the cases which are stipulated in legislative acts or by agreement with those persons.
2. Appropriately, the general provisions concerning obligations and agreements shall apply to unilateral transactions, inasmuch as it does not contradict legislation, or the nature and the essence of the transaction.
Article 150. Transactions Entered into Under Condition
1. A transaction shall be considered to be entered into under a delaying condition, where the parties conditioned the emergence of their rights and obligations upon a circumstance, with regard to which it is not known whether it will occur or not.
2. A transaction shall be deemed to be entered into under an invalidating provision, when the parties conditioned the invalidation of the rights and obligations by a circumstance, with regard to which it is not known whether it will occur or not.
3. When the emergence of a condition is unfairly impeded by a party to which the emergence of the condition is non-beneficial, then the condition shall be recognized as having taken place.
When the emergence of a condition is unfairly assisted by a party, for whom the emergence of the condition is favorable, then the condition shall be recognized as not having taken place.
Article 151. The Form of Transactions
1. Transactions can be entered into orally or in written form (simple or notary).
2. A transaction for which legislation or the agreement of the parties does not establish a written form (simple or notary), or any other definite form, may be entered into orally, in particular, any transactions which are executed by their commitment. Such a transaction shall be deemed to be entered into also in the case where the will of the person to enter into the transaction is clear from the behavior of the person.
3. A transaction which is confirmed by issuing a ticket, label or any other sign which is generally acceptable for confirmation, shall be deemed to be concluded in oral form, unless otherwise is stipulated in legislation.
4. Silence shall be understood as an expression of the will to enter into a transaction in the events stipulated by legislation or the agreement of the parties.
5. Transactions to execute an agreement which is concluded in writing may, by agreement of the parties, be entered into orally, provided that the transaction does not contradict legislation.
Article 152. The Written Form of Transactions
1. The following transaction must be entered into in writing:
1) those which are carried out in the course of entrepreneurial activities, except for transactions which are fulfilled by their execution itself, unless it is otherwise stipulated in legislation for individuals of transactions, nor does it ensue from the customs of the business practice;
2) for the amount of more than one hundred estimated indicators except for the transactions which are executed by their commitment itself;
3) in any other cases which are stipulated in legislation or the agreement of the parties.
2. A transaction which is executed in writing, must be signed by the parties or their representatives, unless otherwise ensues from the usual business practice.
It shall be allowed, when entering into transactions, to use facsimile copying of signatures, unless this contradicts legislation or the requirements of one of the participants.
3. Bilateral transactions may be entered into by way of exchanging documents, each one of them shall be signed by the sending party.
The exchange of letters, telegrams, telephonograms, teletypograms, facsimiles or any other documents which identify the entities and the contents as expression of their will, shall be equated to the execution of transactions in writing, unless it is otherwise stipulated in legislation or in the agreement of the parties.
Legislation and the agreements of parties may establish additional requirements to which the form of the transaction must correspond, in particular, the execution in accordance with a certain of form, affixing the seal and stipulation of the consequences of the failure to comply with those requirements.
4. Where a citizen as a result of a physical shortage, disease or illiteracy is not able to personally sign, then upon his request a transaction may be signed by any other citizen. The signature of the latter, unless it is otherwise stipulated in legislation, must be witnessed by a notary or any other official who has the right to enter into such notary action with an indication of the reasons for which the person who entered into the transaction failed to sign it personally.
5. The party that fulfilled a transaction which was executed in writing, shall have the right to claim from the other party a document which confirms that fulfillment.
The same right shall belong to the party which fulfilled an oral entrepreneurial transaction, except for the transactions which are fulfilled by their commitment itself.
Article 153. The Consequences of a Failure to Comply with the Written Form of a Transaction
1. A failure to comply with the simple written form of a transaction shall not entail its invalidity, but it shall deprive the parties of the right to confirm its conclusion, contents or its execution by witness evidence in the case of a dispute. The parties, however, shall have the right to confirm the execution, contents or the implementation of a transaction by written or any other proofs except for the use of witness's evidence.
2. In the cases which are specifically stipulated in legislative acts or in the agreement of the parties, a failure to comply with the simple written form of a transaction shall entail its invalidity.
3. A failure to comply with the simple written form of a foreign economic transaction, shall entail the invalidity of the transaction.
Article 154. Notarization of Transactions
1. In the cases which are stipulated in legislative acts or by the agreement of the parties, written transactions shall be deemed to be entered into only upon their notarization. The failure to comply with these requirements shall entail the invalidity of the transaction with the consequences stipulated in paragraph 3 of Article 157 of this Code.
2. Where a transaction which requires notarization is actually fulfilled by the parties or by one of the parties, and by its contents does not contradict legislation and does not violate the rights of third persons, the court upon the application of the interested party shall have the right to recognize the transaction as valid. In that case the subsequent notarization of the transaction shall not be required.
Article 155. Registration of Transactions
1. Transactions which are subject, in accordance with the legislative acts, to state registration or other registration, shall be considered as concluded after their registration, unless it is otherwise stipulated in the legislative acts.
A denial of registration must be formulated in writing, and it may be possible only with a reference to violation of the requirements of legislation.
2. Where a transaction which requires state registration is executed in a proper form, but one of the parties evades its registration, the court shall have the right upon the claim of the counter party to pass the decision to register the transaction. In this case the transaction shall be registered in accordance with the decision of the court.
Article 156. Exchange Transactions
1. Transactions, which subject is the property, permitted to be circulated at the bourse and which are concluded by the participants of the bourse in accordance with the procedure established by legislation concerning the appropriate (commodity, stock and other) bourses and in the charters of bourses, shall be the exchange transactions.
2. Bourse transactions may be documented by broker records, and they shall be subject to registration by the bourse.
3. Unless otherwise ensues from legislation, from the agreement of the parties or from the essence of the transaction, the rules for the relevant agreements (purchase and sale agreements, commission agreements, and other) shall apply to bourse transactions in relation to the contents.
4. Legislation or the bourse charter may stipulate the conditions of bourse transactions which constitute commercial secrets of the parties and which are not to be subject to disclosure without their consent, except for the information, provided to the authorized body on financial monitoring in accordance with the Law of the Republic of Kazakhstan «On counteraction to legalization(laundering) of incomes, received by illegal way and financing the terrorism».
5. Disputes which are associated with the entering into bourse transactions shall be settled by the arbitration attached to the relevant bourse, the decision of which may be challenged in a court.
6. Is excluded.
Article 157. Invalid Transactions and the Consequences of Their Invalidity
1. When the requirements are violated which are applicable to the form, or contents of a transaction and to the participants of a transaction, and also to the freedom of their will expression, the transaction may be recognized as invalid in accordance with an action of the interested parties, a duly authorized state body or the procurator.
2. The grounds of invalidity of a transaction and also the list of persons who have the right to demand the recognition thereof as invalid, shall be established by this Code or any other legislative acts.
3. When a transaction is recognized as invalid, each party shall be obliged to return to another party everything that was received in the transaction, and where it is not possible to return it in kind (particularly, when the received thing is expressed in the usage of the property, the implemented work or the provided service), to compensate in money the cost of the returnable property, property usage cost, the value of the refundable property, its value in money.
4. When a transaction is aimed at the achievement of a criminal purpose, then, where the intention exists on the part of both parties, everything received by them in the transaction or intended to be received, upon the decision or sentence of the court shall be subject to confiscation. In the case of the execution of such a transaction by one party, everything which is received by it and everything which is due from it in the transaction to the first party shall be subject to confiscation. Where none of the parties proceeded to the implementation, everything which is envisaged by the transaction for its implementation shall be subject to confiscation.
5. Where the intention to achieve a criminal purpose exists only with one of the parties, everything that is received by it in the transaction shall be subject to return to the other party, and what is received by the latter or due to it in accordance with the transaction, shall be subject to confiscation.
6. Subject to specific circumstances, the court shall have the right not to apply partially or in full the consequences which are stipulated in paragraphs 4 and 5 of this Article, as concerning the confiscation of the assets received or subject to receipt through invalid transactions. In that regard the consequences shall arise which are stipulated in paragraph 3 of this Article.
7. Aside from the consequences stipulated in paragraphs 3 - 6 of this Article, the court may exact for the benefit of the other party the losses incurred by the latter, which are associated with the recognition of a transaction as invalid from the party which is guilty of commission of the acts which cause the invalidity of the transaction.
8. An invalid transaction shall not entail any legal consequences, except for those which are associated with its invalidity, and it shall be invalid from the moment of its commitment.
9. In recognizing a transaction as invalid, the court shall have the right to take into account the specific circumstances, and restrict itself at the prohibition of its further execution.
Article 158. Invalidity of a Transaction which Contents are not Answerable to the Requirements of Legislation
1. A transaction, the contents of which do not comply with the requirements of legislation, and which is entered into for a purpose which is deliberately opposite to the fundamentals of the law and order or morals, shall be invalid.
2. A person who deliberately concluded a transaction which violates the requirements of legislation, the charter of a legal entity or the authority of its bodies, shall not have the right to claim the recognition of the transaction as invalid, provided such a claim is caused by financial interest or the intention to evade responsibility.
3. In the event that one of the participants of a transaction entered into it with an intent to evade from the execution of the obligation or from the duty to a third person or the state, and the other participant of the transaction new or should have known of that intention, an interested party (the state) shall have the right to claim to recognize the transaction as invalid.
Article 159. The Basis for the Invalidity of Transactions
1. A transaction entered into without obtaining the required license or after the expiry of the term of a license shall be invalid.
2. A transaction which pursues the purposes of unfair competition or which violates the requirements of business ethics shall be invalid.
3. A transaction which is entered into by the person who did not reach fourteen years of age, except for the transactions stipulated in the Article 23 of this Code, shall be invalid.
4. A transaction which is entered into by a junior which reached fourteen years, without consent of his (her) parents (adopters) or sponsors, except for the transactions which he in accordance with the law has the right to enter into independently, may be recognized by the court as invalid upon the action by the parents (adopters) or the guardian. The provisions of this Article shall not apply to transactions of minors, recognized in accordance with this Code as completely capable (paragraph 2 of Article 17, Article 22-1 of this Code).
5. A transaction shall be invalid which is entered into by a person who is recognized as incapable as a result of a mental disease or mental weakness. A transaction which is entered into by a citizen, who afterwards is recognized as incapable (Article 26 of this Code), may be recognized by the court as invalid upon the action by his guardian, provided it is proved that at the moment of the commitment of the transaction that citizen was in the condition of a psychic disorder.
6. Upon the requirement of the guardian the court may recognize as invalid transaction which is entered into by the person whose deed capacity is restricted by the court.
7. A transaction which is entered into by a citizen who, although capable, but at the moment of its commitment was in a state that he could not realize the meaning of his actions or guide them, may be recognized by the court as invalid in accordance with the action of that citizen, but if when alive the citizen did not have an opportunity to file the action, - after the death of the citizen upon the action of any other interested persons.
8. A transaction which is entered into as a result of a significant error may be recognized by the court as invalid upon an action by the party which acted under the influence of misguidance. The misguidance is material where it relates to the nature of a transaction, the identity, or to any other qualities of its subject which significantly reduce the possibility of its intended use. Misguidance in the motives may serve as a basis of invalidity of a transaction only when such motive is included in its contents as a delaying or annulling condition (Article 150 of this Code).
If the misguidance is a consequence of gross carelessness of the participant in the transaction, or it is covered by his entrepreneurial risk, the court, taking into account the specific circumstances and the interest of the other participant of the transaction, shall have the right to refuse the action to recognize the transaction as invalid.
9. A transaction which is entered into under the influence of fraud, violence, or threat, and also a transaction that the person was compelled to enter into as a result of a combination of difficult circumstances and on conditions extremely unprofitable for himself (herself) which was exploited by the other party (shackling agreement), may be recognized by the court as invalid upon the action of the victim.
10. A transaction which is concluded as a result of a malicious collusion of the representative of one party with the other party, may be recognized by the court as invalid upon the action of the victimized party. Compensation for losses which are inflicted upon the victimized party (paragraph 4 Article 9 of this Code), may be imposed upon the unfair representative in the procedure of subsidiary liability.
11. A transaction performed by a legal entity in contradiction to the objects of the activity expressly restricted by this Code, or other legislative acts, or foundation documents, or in violation of the charter authority of its body, may be recognized as invalid pursuant to a court action of the owner of the property of a given legal entity, provided it is proved that the other party to a given transaction knew, or deliberately must have known about such violations.
12. The transactions which are stipulated in paragraphs 3 and 5 of this Article, upon the claim of the parents, adopters or guardians of infants or of incapable persons by the decisions of a court may be recognized as invalid, provided they are entered into for the benefit of the indicated persons.
Article 160. Fictitious or Faked Transactions
1. A fictitious transaction is one which is entered into only for the sake of appearances, without intentions to cause any legal consequences shall be invalid.
2. If one transaction is entered into only for the purpose of hiding another transaction (faked), then the rules shall be applied which are applicable to the transaction which the parties actually had in mind.
Article 161. The Consequences of Invalidity of Part of a Transaction
Invalidity of part of a transaction shall not entail the invalidity of its other parts, provided it is possible to presume that the transaction was entered into without inclusion of its invalid part.
Article 162. Period of Limitation with regard to Invalid Transactions
1. Is excluded
2. The statute of limitations with regard to disputes associated with the invalidity of a transaction on the grounds stipulated in paragraphs 9 and 10 of Article 159 of this Code, shall constitute one year from the date of the cessation of the violence or the threat under which the transaction was entered into, or from the date when the plaintiff learned or should have to learned about any other circumstances which are the basis for the recognition of the transaction as invalid.
Chapter 5. Representation and Power of Attorney
Article 163. Representation
1. A transaction, committed by one person (representative) on behalf of another person (represented) by virtue of the authority based on power of attorney, legislation, a resolution of the court or on an administrative act, shall directly create, alter or terminate the civil rights and obligations of the represented.
The authority may also be clear from the situation in which the representative is acting (salesman in retail trade, cashier, etc.).
2. The rights and obligations shall be acquired directly by the represented in respect of the transaction entered into by the representative.
3. A representative may not enter into transactions on behalf of the represented person, nor in his own name, nor in the name of any other person who he is representing at the same time.
This rule shall not extend to the commercial representation office.
4. The persons who act, although in somebody else's interest, but in their own name (commercial intermediaries, executors of will in inheritance etc.) shall not be representatives, nor the persons who are authorized to enter negotiations with regard to transactions which are possible in the future.
5. It shall not be allowed to enter through a representative into transactions which by their nature may be entered into only in person, nor into other transactions in the cases specified in legislative acts.
Article 164. Representation of Incapable Property
On behalf of incapable persons, transactions shall be entered into by their legitimate representatives.
Article 165. Representation without Authority
A transaction which is entered into on behalf of another person by the person who is not authorized to enter into the transaction, or in excess of their powers, shall create, alter or terminate the civil rights and obligations of the represented only in the case of the subsequent approval by him (her) of that transaction.
The subsequent approval by the represented shall make the transaction valid from the moment of its commitment.
Article 166. Commercial Representation
1. The person who permanently and independently represents entrepreneurs in their concluding agreements (a commercial representative), shall act on the basis of a written agreement which contains indications of the authority of the representative, and in the case where such indications do not exist,- also of the power of attorney.
2. A commercial representative may at the same time represent the interests of various parties of an agreement which is concluded with his participation. In that respect, he shall be obliged to execute the instructions given to him (her) with the diligence of a usual entrepreneur.
3. A commercial representative shall have the right to claim payment of the remuneration owed and the expenses incurred by him (her) when executing the instructions of the parties to the agreement in equal shares, unless it is otherwise stipulated in the agreement between them.
4. A commercial representative shall be obliged to keep secret the information which became known to him (her) concerning commercial transactions, also after the implementation of the assignment entrusted to him (her).
5. Special considerations concerning commercial representation in certain spheres of entrepreneurial activity shall be established by legislation.
Article 167. Power of Attorney
1. A written authorization by one person (the grantor) for representation on his behalf, which is issued to another person (the trustee) shall be recognized as a power of attorney.
2. The power of attorney for managing assets and entering into transactions which require notarization, must be notarized, unless otherwise stipulated in legislative acts.
3. The following shall be equated to notarized powers of attorney:
1) powers of attorney of military servicemen and of any other persons who are in medical treatment at hospitals, sanatoria and any other military medical institutions, attested to by the chiefs, deputy chiefs for medical issues, senior doctors and doctors on duty of those hospitals, sanatoria and other military medical institutions;
2) powers of attorney of the military servicemen, and at the points of deployment of military units, institutions and military education organizations where there is no state notary offices, nor any other bodies which execute notary actions, and also the powers of attorney of workers and employees, members of their families and family members of the military servicemen, which are attested by the commanders (chiefs) of those units, formations, institutions and organizations;
3) powers of attorney of the persons who are in places of imprisonment, certified by the heads of the places of their incarceration;
4) powers of attorney of capable citizens of full age who are in institutions for the social protection of the population, certified by the head of that institution or of the relevant body for the social protection of the population.
4. The power of attorney to receive correspondence including money and parcels, to receive wages and any other payments from citizens and legal entities, may be certified by the bodies of the local administration of the territory of the cities of republican status, cities, districts, cities of regional status, villages, auls (villages), in which the nominator resides, by the organization at which he works or studies, by the housing maintenance organization in the place of his residence, by the administration of the stationary medical institution in which he is being medically treated, and also by the commanders of the relevant military units, where the power of attorney is issued to a military serviceman. A power of attorney which is sent by telegraph and by any others of communications, when the dispatch of the document is carried out by an employee of the communications facility, shall be certified by the bodies of communication.
5. Third persons shall have the right to consider as authentic a power of attorney which is issued for the commission of their acts, which is sent by the trustor to the trustee through facsimile and other method of communication, without use of official bodies of communication.
6. A power of attorney on behalf of a legal entity shall be issued with the signature of its manager or another person who is authorized thereto by the foundation documents, and it shall be attested by the seal of that organization.
7. A power of attorney on behalf of a state body, or a commercial or non-profit organization to receive or pay money and any other material assets, must be signed also by the chief (senior) accountant of that organization.
8. The procedure for issuing and the pro-forma of the power attorney to enter into banking transactions and the power of attorney for entering into transactions in the area of trade may be determined by special-purpose rules.
Article 168. The Term of a Power of Attorney
1. A power attorney may be issued for a term of no longer than three years. Where a longer term is indicated in a power of attorney, it shall be effective within three years, and if the effective period is not indicated therein, then it will be valid within one year from the date of the issue.
2. A power of attorney shall be invalid, if it has not the date of its issue.
Article 169. Re-Assignment
1. A trustee must personally enter into the actions to which he is authorized. He may re-assign their commitment to any other person only in the case where he is authorized thereto by the power of attorney received or is compelled to do that by virtue of circumstances for the protection of the interests of the trustor.
2. A power of attorney in which the trustee conveys the powers to any other person must be notarized, except for the cases stipulated in paragraph 4 of Article 167 of this Code.
An original power of attorney shall be submitted to the power of attorney, on which basis trustee re-assigns his (her) powers to another person. Notarized copy of the original power of attorney shall be submitted to the power of attorney, on which basis trustee re-assigns to another person or several person, the separate powers specified in the original power of attorney.
3. The term of validity of a power of attorney which is issued for re-assignment may not exceed the term of effect of the original power of attorney on the basis of which it was issued.
4. The trustee who re-assigned the powers to any other person must immediately notify of that the nominator and to communicate to him (her) the necessary information concerning that person and his place of residence. The failure to comply with this duty shall impose on the trustee the liability for the actions the person to whom he re-assigned the powers, as for his (her) own.
Article 170. Cessation of a Power of Attorney
1. The effect of a power of attorney shall cease as a result of the following:
1) expiry of the term of the power of attorney;
2) completion of the actions provided for by the power of attorney;
3) annulment of the power of attorney by the person who issued it;
4) the refusal of the person to whom the power of a attorney is issued;
5) the cessation of the legal entity on whose behalf the power of attorney was issued;
6) liquidation of the legal entity on whose behalf the power of attorney was issued;
7) the death of the person who issued the power of attorney, or the recognition of him (her) as incapable, of limited capability or missing;
8) the death of the citizen to whom the power of attorney is issued, or the recognition of him (her) as incapable, of limited capability or missing.
