When the right to own pledged assets is transferred to another person, the note of transfer of the pledge to the new owner shall be made in the register.
3. A pledger who executed an obligation secured with a pledge shall have the right to claim the annulment of the note of the pledge from the register. Upon the claim of the pledger, the pledge holder shall be obliged to present to the body which carries out the registration the necessary documents and written applications. In the case of failure to execute, or an untimely execution by the pledge holder of those obligations, the pledger shall have the right to claim compensation of losses inflicted on him.
Article 309. Assets to Which the Rights of
a Pledge Holder Apply
1. Unless it is otherwise stipulated in the agreement or legislative acts, the rights of the pledge holder (the right to pledge) in respect to the item which is pledged item, shall apply to its accessories and inseparable fruit.
In the cases stipulated in the agreement or legislative acts the right to pledge shall apply to the separable fruit, production and income received as a result of the use of the pledged property.
2. In the case of mortgage of an enterprise or any other property complex as a whole, the right of pledge shall apply to all the property, both movable and immovable, including the right to claim and exclusive rights, including those acquired during the mortgage, unless it is otherwise stipulated in legislative acts or the agreement.
3. Mortgage of a building or installation shall be allowed only with a simultaneous mortgage through the same agreement of the land plot on which the building or installation is located, or of the part of the plot which is functionally related to the mortgaged facility.
Article 310. The Emergence of the Right to Pledge
1. Unless it is otherwise stipulated in the pledge agreement, the right to pledge shall arise in respect to the property, the pledging of which is subject to registration, - from the moment of the registration of the agreement, and in respect of other property, - from the moment of the transfer of that property to the pledge holder, and where it is not subject to transfer, from the moment of concluding the pledge agreement.
2. The right to pledge goods in circulation shall arise in accordance with the rules of paragraph 2 of Article 327 of this Code.
Article 311. Subsequent Pledge (Re-Pledge)
as amended by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
1. When pledged property becomes subject to another pledge to secure any other claims (re-pledge), then the claims of the subsequent pledge holder shall be satisfied from the value of the pledged item after the satisfaction of the claims of previous pedgeholders.
2. Re-pledge shall be allowed unless it is prohibited by the previous pledge agreements.
3. The pledger shall be obliged to communicate to each subsequent pledge holder information concerning all the existing pledges of that property and he shall be liable for losses inflicted upon the pledge holders by failure to execute that duty.
Article 312. Maintenance and Safety of Pledged Assets
1. The pledger or the pledge holder, depending on which of them keeps the pledged property, unless it is otherwise stipulated in legislative acts or the agreement, shall be obliged as follows:
1) to adopt measures which are required to ensure the safety of pledged property including for its protection from encroachments and claims by third parties;
2) immediately notify the other party of the emergence of a threat of losing or damaging pledged property.
2. The pledge holder and the pledger shall have the right to check against documents and to verify the physical presence, size, status and conditions of storage of pledged assets which are kept by the counter party.
3. In case of a gross violation by the pledge holder of the obligations indicated in paragraph 1 of this Article, which creates the threat of loss or damage to pledged property, the pledger shall have the right to claim a premature termination of the pledge.
Article 313. The Consequences of a Loss or Damage to Pledged
Assets
1. A pledger shall bear the risk of an accidental destruction or damage to pledged assets, unless it is otherwise stipulated in the pledge agreement.
2. A pledge holder shall be responsible for a full or partial loss or damage of the pledged item entrusted to him, unless he proves that he may be exempt from the responsibility in accordance with Aarticle 359 of this Code.
3. A pledge holder shall be responsible for the loss of a pledged item in the amount of its actual value, and for any damage to it, - in the amount by which that value was reduced, irrespective of the amount at which the pledged item was evaluated when it was transferred to the pledge holder.
4. If as a result of damage to a pledged item, it has changed so much that it may not be used in accordance with its direct designation, the pledger shall have the right to reject it and to claim compensation for its loss.
5. The agreement may envisage the obligation of the pledge holder to also compensate the pledger for any other losses inflicted by the loss or damage to the pledged item.
6. A pledger who is the debtor in an obligation secured with pledge shall have the right to offset a claim of compensation for losses caused by the loss or damage to the pledged item against the pledge holder, as repayment of the obligation secured with the pledge.
Article 314. Replacement and Restitution of a Pledged Item
1. The replacement of a pledged item shall be allowed with the consent of the pledge holder, unless legislative acts or the agreement stipulate otherwise.
2. When a pledged item is destroyed or damaged, or the right to own or the right of business authority of it ceased on the bases established by legislative acts, the pledger shall have the right within a reasonable period to restore the pledged item or replace it with any other equally valued asset.
Article 315. Use and Disposal of Pledged Items
1. A pledger shall have the right, unless it is otherwise stipulated in the agreement and does not ensue from the essence of the pledge, to use the pledged item in accordance with its designation, in particular, to derive fruit and income from it.
2. Unless it is otherwise stipulated in legislative acts or the agreement, and does not ensue from the essence of the pledge, the pledger shall have the right to alienate pledged items into ownership, business authority or operational management, to transfer it into lease or charge-free use to another person, or in any other way dispose of it, only with the approval of the pledge holder.
An agreement which restricts the right of a pledger to bequest pledged property shall be invalid.
3. A pledge holder shall have the right to use the pledged item entrusted to him, only in the cases which are stipulated by the agreement, and regularly present to the pledger reports on its use. In accordance with the agreement, the pledge holder may be entrusted with the duty to derive fruit and income from the pledged item for the purpose of repaying the principal obligation or in the interests of the pledger.
Article 316. Protection by a Pledge Holder of His Rights to
Pledged Items
1. A pledge holder who held or should have held pledged property, shall have the right to claim it from anybody else's illegal possession including from the pledger himself.
2. In the cases where, in accordance with the agreement, the pledge holder is granted the right to use the pledged item entrusted to him, he may claim from other persons, including from the pledger the elimination of any violations of his right, even though those violations are not related to deprivation of possession.
Article 317. The Bases of the Imposition of Claims on Pledged
Property
1. Claims on pledged property for the satisfaction of claims of the pledge holder (creditor) may be imposed in the case of a failure to execute or improper execution by the debtor of the obligation secured with the pledge for which he is liable.
2. The imposition of a claim on pledged property maybe denied when the violation committed by the debtor of the obligation which is secured with the pledge, is extremely insignificant, and the amount of the claim of the pledge holder as a result of that is clearly disproportionate with the value of the pledged property.
Article 318. The Procedure for the Imposition of Claims on Pledged
Items
1. Satisfaction of a claim of a pledger out of the value of pledged property shall be carried out in accordance with the judicial procedure, unless it is otherwise stipulated in this Code or other legislative acts or the agreement.
2. In the cases stipulated in the pledge agreement and also in this Code and other legislative acts, the pledger shall have the right to independently sell pledged assets in a compulsory non-judicial procedure by way of holding a tender sales (auction). A bank which is a pledge holder shall have the same right to sell pledged items which secure monetary loans.
Article 319. Selling Pledged Assets
as amended by (21) Law No. 96 of 8th November 2000 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Appraisal of Property.
1. The selling of pledged property upon which in accordance with Article 20 of this Code a claim is imposed, shall be carried out by way of selling through public auctions in accordance with the procedure which is established by the procedural legislation, unless legislative acts stipulate any other procedure.
2. Special considerations in selling pledged assets in a compulsory non-judicial procedure shall be established by this Code and the Law Concerning Mortgage of Immovables. The rules and procedures established for selling mortgages by the Law Concerning Mortgage of Immovables, shall apply to selling property when other types of pledge are executed, unless this Code stipulates otherwise.
3. Upon the request of a pledger, the court shall have the right in the decision on imposition of a claim on pledged property to delay its sale through public auctions for a period up to one year. The delay shall not affect the rights and obligations of the parties in respect to the obligation secured with the pledge of that property, and it shall not exempt the debtor from the repayment of the creditor's losses and amounts of damages which have increased during the period of the delay.
4. Any legal entities and citizens, including the pledger and the pledge holder, shall have the right to participate in the auction.
Prior to the beginning of the auction, the court or any nominated person (Article 320 of this Code) shall have the right to require the payment of a guarantee contribution from each of the participants in the auction. The guarantee contributions shall be subject to refund after the auction. A guarantee contribution by a participant who won the auction shall be included in the amount of the final price. A guarantee contribution of a participant who won the auction but who did not pay the final price shall not be refunded and it shall remain at the disposal of the court or the nominated person.
5. When an auction is announced as invalid, because of the participation in them of less than two buyers, the pledge holder shall have the right either to turn the pledged assets into his own property at its current estimated value, which is established by the court decision, or by the nominated person on the basis of the report of the physical persons or legal entities that have licences for the performance of activities associated with appraisal of property or to require the organisation of a new auction.
6. When the amount which is received from selling pledged property is insufficient to cover the claims of the pledge holder, he shall have the right, in the absence of another indication in the legislative acts or agreement, to receive the amount of arrears from other property of the debtor without using the advantages based on the pledge.
When the amount received in selling pledged property exceeds the amount of the claim of the pledge holder, secured with the pledge, the difference shall be returned to the pledger.
7. A debtor and a pledger who is a third party (material surety) shall have the right, at any time prior to when the sale of the pledged item took place, to terminate the imposition of the claim on it and its sale, after executing the obligation secured with the pledge or a part of it the execution of which was delayed. An agreement which restricts this right shall be invalid.
Article 320. Selling Pledged Property in a Compulsory Non-Judicial
Procedure
1. When selling pledged property in a compulsory non-judicial procedure, the auction shall be carried out by the nominated person, who may be a legal entity or a citizen who has the power of attorney from the pledge holder, to sell the pledged property in the case of violation of the obligation secured with the pledge.
2. The nominated person shall carry out the following procedure:
1) compile notification to the pledger of the non-execution of the obligations and register it at the body where the pledge agreement was registered;
2) in the case where the claims which ensue from the notice are not satisfied, but not earlier than two months after the moment of its dispatch to the pledger, compile the notice of auction of the pledged property, register it with the body where the pledge agreement was registered, and hand it to pledger;
3) officially publish the announcement of the auction in the local press.
Article 321. Premature Execution of an Obligation Which is Secured
with the Pledge and the Imposition of a Claim Upon the Pledged Property
1. A pledge holder shall have the right to claim a premature execution of obligations secured with pledge in the following cases:
1) when the pledged item went out of possession of the pledger with whom it was left not in accordance with the provisions of the pledge agreement;
2) violation by the pledger of the rules for the replacement of pledged property (Article 314 of this Code);
3) the loss of the pledged item under the circumstances for which the pledge holder is not responsible (paragraph 2 of Article 313 of this Code), unless the pledger exercises the right stipulated in paragraph 2 of Article 314 of this Code.
2. A pledge holder shall have the right to claim a premature execution of the obligation secured with pledge, and if his claim is not satisfied, to impose the claim upon the pledged item in the following cases:
1) violation by the pledger of the rules concerning subsequent pledge;
2) non-execution by the pledger of the obligations stipulated in sub-paragraphs 1 and 2 of paragraph 1 and paragraph 2 of Article 312 of this Code;
3) violation by the pledger of the rules for disposal of pledged property (paragraph 2 of Article 315 of this Code).
Article 322. Cessation of Pledge
1. Pledge shall cease as follows:
1) with the cessation of the obligation secured with pledge;
2) upon the claim of the pledger, where the bases exist which are stipulated in paragraph 3 of Article 312 of this Code;
3) in the case of destruction of a pledged item or cessation of the pledged right, unless the pledger failed to exercise the right stipulated in paragraph 2 of Article 314 of this Code;
4) in the case of selling pledged property through a public auction and also in the event that its sale turned out to be impossible (Article 319 of this Code).
2. An note must be made on the cessation of pledge in the register in which the pledge agreement was registered.
3. In cessation of pledge as a result of the execution of the obligation secured with the pledge, or by demand of the pledger (paragraph 3 of Article 312 of this Code), the pledge holder who holds pledged property shall be obliged to immediately return it to the pledger.
Article 323. Preservation of Pledge in the Transfer of the Right
to Pledged Property to Another Person in the Procedure of Legal
Successorship
1. In the case of a transfer of the right to own pledged property or the right to business authority over it, from the pledger to any other person as result of a chargeable or charge-free alienation of that property, or in the procedure of the universal legal successorship, the right of pledge shall remain valid.
The legal successor of a pledger shall take the place of the pledger, and he shall bear all the obligations of the pledger, unless the agreement with the pledge holder stipulates otherwise.
2. When the assets of a pledger, which are the pledged items are transferred in accordance with the procedure of legal successorship to several persons, then each of the legal successors (acquirers of the property) shall bear the consequences of non-execution of the obligation secured with pledge, which ensue from the pledge in proportion to the part of the property which was acquired by him. However, where a pledged item is indivisible or for any other reasons remains in common joint ownership of legal successors, they shall become joint pledgers.
Article 324. The Consequences of Compulsory Withdrawal of Pledged
Property
1. When the pledger's right to own the property which is the pledged property ceases upon the bases and in accordance with the procedure stipulated in legislative acts, as a result of withdrawal (purchase) for state needs, requisition or nationalisation, and the pledger is granted other property or appropriate compensation, the right to pledge shall apply to the property granted instead, or where appropriate, the pledge holder shall acquire the right of priority satisfaction of his claims out of the amount of the remuneration which is due to the pledger. A pledge holder may also require premature execution of the obligation which is secured with pledge (paragraph 1 of Article 321 of this Code).
2. In the cases where the property which is pledged is confiscated from the pledger in accordance with the procedure established by the legislative acts, on the grounds that in reality the owner of that property is a different person, or in the form of a sanction for the commission of a crime or any other violation, the pledge in respect to that property shall cease. In those cases, the pledge holder shall have the right to claim a premature execution of the obligation secured with the pledge.
Article 325. Assignment of Rights in a Pledge Agreement
as amended by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
1. A pledge holder shall have the right to assign his rights in a pledge agreement to another person, in compliance with the rules for conveyance of rights of a creditor by way of assigning a claim (Article 339 - 347 of this Code).
2. The assignment by a pledge holder of his rights in a pledge agreement to any other person shall be valid, provided the rights to claim the principal obligations secured with the pledge, from the debtor, are assigned to the same person.
Article 326. Transfer of Debt in an Obligation Secured with Pledge
Pledge shall terminate with the transfer to another person of the debt under an obligation secured with pledge, if the pledger have not given his approval to the creditor to be liable for the new debtor.
Article 327. Pledge of Goods in Circulation
1. Pledge of goods in circulation shall be recognised as the pledge of goods by storing them with the pledger and granting to the pledger of the right to change the composition and the physical condition of the pledged property (inventories, raw materials, consumables, semi-finished goods, finished production etc.), provided that their total value does not become less than the one indicated in the pledge agreement.
Reduction of the value of pledged goods in circulation shall be allowed in proportion to the executed part of the obligation which is secured with pledge, unless it is otherwise stipulated in the agreement.
2. The goods in circulation which are alienated by the pledger shall cease to be subject to pledge from the moment of their transfer into the ownership, business authority or operational management of the buyer, while the goods purchased by the pledger, which are indicated in the pledge agreement shall become the pledged item from the moment of the acquisition by the pledger of the right of ownership or business authority over them.
3. A pledger of goods in circulation shall be obliged to keep the book of record of pledges in which the notes are made concerning the conditions of pledging goods, and concerning any transactions which entail changes in the composition or in the natural condition of pledged goods, including their processing, as at the date of the last operation.
4. In the event that a pledger violates conditions for pledging of goods in circulation, the pledge holder shall have the right to suspend transactions in pledged goods until violations are eliminated, by way of affixing to the goods his signs and seals.
Article 328. Pledging Items in a Pawnshop
as amended by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)"; and
(24) Law No. 162 of 2nd March 2001 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions To Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of the Banking Activity.
1. Acceptance from citizens of movable assets which are intended for personal use to secure short-term loans, may be carried out as an entrepreneurial activity by specialised organisations, - pawnshops which have licences therefor.
2. An agreement for pledging items in a pawnshop shall be documented through the pawnshop's issuing a pledge ticket.
3. Pledged items shall be entrusted to the pawnshop. A pawnshop shall be obliged to insure, for the benefit of the pledger at its expense, the items accepted as pledge in the full amount of their estimated value, which is established in accordance with the prices of the items of that type and quality, which are usually charged in the trade at the moment of their acceptance as pledge.
A pawnshop shall not have the right to use and dispose of pledged items.
4. The pawnshop shall bear responsibility for loss and damage to pledged items, unless it proves that the loss or damage occurred as a result of force majeur.
6. The rules for crediting citizens by pawnshops under the pledge of the items which belong to citizens, and also the procedure for licensing pawnshops, shall be established by legislative acts in accordance with this Code.
7. The provisions of an agreement to pledge items in a pawnshop, which restrict the rights of the pledger as compared to the rights which are granted to him by this Code and the appropriate legislative act, shall be invalid from the moment of the conclusion of the agreement. Relevant provisions of this Code and of the appropriate legislative acts shall apply instead of such provisions.
§ 4. Suretyship and Guarantee
replaced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 329. Suretyship
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 330. Guarantee
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 331. Basis and form of Suretyship and Guarantee
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 332. Liability of Surety and Guarantor
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 333. Rights and obligations of the Surety In the event of a
claim upon him by the Creditor
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 334. The Right of a Surety and Guarantor Who Executed
their Obligation
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 335. Notification of the Surety and Guarantor of the
Execution of an Obligation by the Debtor
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
Article 336. Termination of Suretyship and Guarantee
excluded by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
§ 4. Guarantee and Suretyship
Article 329. Guarantee
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
1. By virtue of a guarantee the guarantor shall become liable to the creditor of another person (debtor) severally in full or in part for the execution of obligations of that person, except for the cases provided for by legislative acts.
2. Persons who jointly issued a guarantee shall be liable to the creditor severally, unless it is otherwise stipulated in the guarantee agreement.
3. A guarantee agreement may be entered into also in order to secure an obligation which will emerge in the future.
Article 330. Suretyship
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
By virtue of a suretyship, the surety assumes the obligation before the creditor of any other person (debtor) to be liable severally for the execution of that person's obligation in full or in part.
Article 331. Bases and Forms of Guarantees and Suretyships
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
amended by (24) Law No. 162 of 2nd March 2001 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions To Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of the Banking Activity.
1. A guarantee and a suretyship shall arise on the basis of suretyship or guarantee agreements. Application of guarantees may be established by legislation.
2. Guarantee or suretyship agreements must be made in writing. Any failure to comply with the written form shall render an agreement of suretyship or guarantee invalid.
3. The written from of guarantee or surety agreements shall be deemed to be complied with, provided the guarantor or surety notified in writing the creditor of his liability for the execution of the obligation by the debtor, and the creditor did not refuse the proposal of the guarantor or surety during the period of time which is reasonably required for such a refusal.
4. Second-tier banks may carry out issuing of banking guarantees and suretyships on the basis of the licences from the National Bank of the Republic of Kazakhstan in accordance with the rules of this Code and subject to the requirements of the regulatory legal acts of the National Bank of the Republic of Kazakhstan which regulate the procedure for conducting said transactions.
Article 332. Liability of Guarantors and Sureties
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
1. Unless it is otherwise established by the agreement, a guarantee or a suretyship shall secure only valid claims. A guarantor and a surety shall not be released from their liability if they assumed the liability for a debtor whose incompetence had been previously been known to them, while the creditor had no knowledge of that circumstance.
2. The guarantor shall be liable to the creditor within the same volume as the debtor, including payment of damages, remuneration (interest), court expenses associated with the levying of the debt and other costs of the creditor incurred by the failure to execute the obligation or its improper execution by the debtor, unless it is otherwise established in the guarantee agreement.
3. The surety shall be liable before the creditor within the amount as indicated in the suretyship agreement, unless it is otherwise stipulated by its terms. Prior to presenting any claims to the surety who bears several liability, the creditor shall take reasonable measures to make the debtor satisfy this claim, particularly by offseting a counter claim and by imposing claims upon the debtors property in accordance with the established procedure.
Article 333. The Rights and Obligations of A Guarantor In the
Event That The Creditor Files A Claim Against Him
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
1. A guarantor, prior to satisfying a creditors claim, shall be obliged to notify the debtor of it, and in the event that an action is filed against the guarantor, he shall hold the debtor as a party to the action. If contrary is the case, the debtor shall have the right to present all objections, which he had against the creditor, against the guarantors recourse.
2. A guarantor shall have the right to make objections against the creditor's claims which may be presented by the debtor, unless it otherwise ensues from the guarantee agreement. The guarantor shall not lose the right to those objections even in the case where the debtor refused them, or recognised his debt.
Article 334. The Rights of A Guarantor and A Surety Who Executed
Obligations
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
1. The guarantor who executed the obligation shall acquire all the rights of the creditor under that obligation, and the rights which belonged to the creditor as pledge holder, in the amount in which the guarantor satisfied the claims of the creditor. The guarantor shall also have the right to claim from the debtor the payment of damages and interest (remuneration) in the amount paid to the creditor, and reimbursement of other losses incurred in connection with the liability for the debtor.
2. In the execution by the guarantor of an obligation, the creditor shall be obliged to hand to the guarantor the documents which certify the claim against the debtor and to convey the rights which provide for that claim.
3. The rules which are established in paragraphs 1 and 2 of this Article shall apply, unless it is otherwise stipulated by legislation, or in the agreement of the guarantor with the debtor nor ensues from the relations between them.
4. A surety shall acquire the same inasmuch as he executed the obligation of the debtor to the creditor.
Article 335. Notice to the Guarantor and Surety On the Execution
of an Obligation by the Debtor
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
A debtor who executed an obligation secured with a guarantee or a suretyship shall be obliged to immediately notify the guarantor or the surety of that. If the contrary is the case, the guarantor or the surety, who in their turn executed the obligation, shall have the right to claim from creditor what he received undeservedly, or to file a regress claim against the debtor. If the latter is the case, the debtor shall have the right to claim from the creditor only the amount which was received undeservedly.
Article 336. Termination of A Guarantee and Suretyship
introduced by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
1. A guarantee and a suretyship shall terminate upon termination of the obligation secured by it, and in the case of a change in this obligation entailing an increase in the liability or other unfavourable consequences for the guarantor and surety, without their consent.
2. A guarantee and a suretyship shall terminate upon transferring to another person the debt secured by the guarantee or surety, unless the guarantor or surety have given to the creditor their consent to be liable for the new debtor.
3. A guarantee and a suretyship shall terminate if upon the date of execution of the obligation secured by it, the creditor has declined to accept a proper execution as offered by the debtor, or the guarantor, and surety.
4. A guarantee and a suretyship shall terminate upon expiry of their effective term for which they were issued, as indicated in the guarantee or surety agreement. If such term is not specified, they shall terminate, unless the creditor files a claim against the guarantor or surety within one year from the date of execution of an obligation secured by the guarantee or surety. Where the term for the execution of the principal obligation is not indicated nor may it be defined, or where it is defined as the moment of calling, the guarantee or the suretyship shall terminate, unless the creditor files an action against the guarantor or surety within two years from the date of entering into the guarantee or suretyship agreement, unless it is otherwise stipulated in legislative acts.
