LEGAL EXPERIENCE IN THE REGULATION
OF LAND RELATIONS IN THE REPUBLIC OF KAZAKHSTAN
Gulnur
Tuleubayeva
Ph.D student of L.N. Gumilyev Eurasian
national university, Kazakhstan
The land legislation of
Kazakhstan is developing quite dynamically. The reforms in the economy, the
transition to a new system of property relations, changes in land turnover led
to a need for a substantial renovation of the entire system of land
legislation. During the years of independence have been accepted the Land Code
from November 16, 1990 replaced by the Edict of the President of the Republic
of Kazakhstan with the Effect of Law On Land from December 22, 1995 which in
its turn has been replaced by the Law of the Republic of Kazakhstan On Land
from January 24, 2001, replaced by the Land Code of the
Republic of Kazakhstan from June 20, 2003. During
the period of development land on the steps and other important regulations
which provide for significant changes in land area, including more than 100
sub-legal acts of the land, mediating institutions, and entirely new categories
of land law. The tendency in the dynamics of the
land laws reflect the political and legal will, the conceptual approaches of
power on the land relationships and,
ultimately, are the legal expression of the objective processes in the land
sector. The market land legislation period of independent of Kazakhstan
in its development have already gone through several stages. The basis of
division into stages are conceptual approaches and the functional goal
orientation main legal acts on the key issues of land reforms. Fundamental political and social-economic foundations
of a modern land system and government regulation of land relations are defined
by the Constitution of the Republic of Kazakhstan on August 30, 1995. [1] At
the first stage of land legislation (1990-1993). Laid the political and legal
foundations of the new land system of Kazakhstan. In the second stage
(1993-1995). Legislation was the beginning of a land market reforms: fixed
principles of sustainability and a market turnover of land use rights, the
legal basis of transition to non-state agricultural commodity on a market
basis. The third stage is connected to the
Decree on Land, is turning largely dominant in the legal framework of market
land relations. In accordance with the Constitution of the Republic of
Kazakhstan on August 30, 1995, decree on the land for the first time
systematically, with the new market positions went to legal mediation of land
relations. Unfortunately, the establishment of land rights has not always been
consistent and sustained. As a result of the
adoption of the Law «About Land» was the beginning of the process of retreat
from a number of market and social principles into land-legal regulation. This
process is not stopped at this, the fifth stage of development, which begins
with the adoption of Land Code of the Republic of Kazakhstan dated June 20,
2003. [2] This basic legal act does not eliminate the shortcomings of retreat,
and in some aspects, on the contrary, further weakening the previous parameters
of the legal regulation. But overall, if you
generalize the results of the formation and development of land laws, it can be
argued that established the right in his rod toward the legal basis of market
land relations.
The legal experience in the regulation of
land relations of independence of Kazakhstan since the Soviet period is unique
for several reasons: the legislative regulation is part of a fundamentally new
political and legal fields; it was aimed at transforming a socialist, an
administrative-command, a distribution economy into a market-type; the absence
of its own historical experience of the legal regulation of land relations in
market conditions; the presence of significant institutional, social,
psychological and administrative barriers to carrying out market-oriented land
and legal policies; the objective necessity of complicating the land
regulation, giving focus and agility land relations against the backdrop
of lack of willingness of law-making and management for such legal status in
the land sector. The Land law of the market period acquired a new quality of
the regulatory and functional: it from a public law was transformed into a
private-public sector law.
The Concept of Legal Policy of Kazakhstan from September 20, 2002 a property relation, market turnover of land has been
withdrawn beyond the limits of land ownership, with the appropriate inclusion
in the sphere of civil law regulation. [3] Specified, not least, was due
to no clear theoretical constructs of exploration with respect to structural
and functional, institutional essence of land law and its place in national
law. The factors and conditions of the market
sector of land law are: the existence of the subject of legal regulation,
self-reliant, particularly in land relations, needs the proper order; the
interest of the state and other subjects of land relations in their management,
development and adoption of special laws, the existence of a codified land law statute,
a special combination of means and methods of legal exposure, meaning the
presence of a unique, unique to this area of the
method of legal regulation, the presence of their own institution to legal
liability. However, the preconditions of the
industry of land rights are not always identified and treated adequately, there
are different approaches. Thus, the emergence of industry land rights in
the Soviet period was associated with the right of exclusive state ownership of
land, that is, statutory ban on the inclusion of land in public circulation.
Ownership, related features cannot be the backbone, independent (especially the
sole) factor in shaping the field of law. To
adequately construct theoretical concepts and categories of modern land rights
instead of the traditional design - the subject and method, methodological
importance is the logical structure of object-subject-method. That is,
the original advocates coming to light and identifying the main characteristics
of the object of legal action.
Modern land relations are still characterized
by the presence of a number of factors, negative direction, although gradually
being general economic, regulatory, organizational, ideological,
socio-psychological prerequisites of a new land legal order. The law building
suffers from inconsistencies, contradictions. Many
market projects and the laws do not account to the extent necessary land
security imperatives and demands guarantees for their implementation are not
adequately protected. In the public mind is still dominated by the conviction
of without lose, Infinity Land. The land ownership has not yet become a
symbol of integrity and special protection. The President of Kazakhstan, in
2002 noted the existence of the legal confusion in the field of land relations.
Speaking of drastic measures to combat
corruption, he noted the need for clearly defined mechanisms of public control
over activities of state bodies in three directions - use of mineral resources,
land relation and privatization. [4] This - the official confirmation at
the highest level of imperious presence of serious problems in the land sector
should be fully thought out action. For the
effectiveness of regulatory - legal regulation of land relations important
questions are: adequately reflect the characteristics of the land law, as the object
of legal exposure; interaction rules of civil and land legislation in
regulating the land market turnover; the legislative continuity and consistency
in securing and guaranteeing the system of property rights of owners and
users; structural and functional coherence of institutions and norms of the
land legislation of different hierarchical levels; the mechanism of action of
the land law, organizational and institutional guarantees for the
implementation of land laws.
The value of LC as the principal, the act is
codified in the fact that the correctness of his general approach of largely
determines the proper orientation, content, and ultimately, the legal level of
land by-laws. What is important is the
assessment of LC in terms of completeness of coverage of the subject of legal
regulation. In the result of the
content and structure of land laws in them were found the following costs,
disadvantages: poor social orientation of the land laws, lack of publicly-transparent
mechanism for empowerment and land redistribution, the presence of departures
from generally accepted principles of closure, the transformation of property
rights, lack of clearly defined legal criteria for the detection of public interests in land relations; excessive appeal to
administrative remedies under the restriction, termination of ownership rights
and implementation of public interest, the presence of the legal feasibility of
corrupt interests under the guise of providing public land and legal interest;
underdevelopment mechanism of public control over transparency, legitimacy and
fairness of administrative acts of the executive agencies and officials;
not land security developed of land use
and environmental requirements, taking into account market conditions,
uncertainty in the size of the economic effect of the introduction of private
ownership of agricultural land. Like the previous land-legal acts, LC contains
many reference rules on very important matters of principle, which
predetermines the nature and direction of land relations. As a result, the problem of interaction, exact laws.
The law of Kazakhstan substantially revised the
system of property rights to land. Liquidated or changed the conditions of
granting and operation of certain types of property rights to land. As a
result, the system of property rights to the land ceased to be balanced,
consisting of the same socially relevant and accessible forms of owning land.
So, at one time lifting the sublease of agricultural land has caused
controversy and mixed reactions among the members of parliament.
Observed non-economic regulatory imposition of private property rights
to land at the expense of other forms of possession of the land, amid the lack
of necessary legal, organizational conditions and guarantees for the realization
and protection of private ownership of land. The institution of private
ownership of agricultural land does not become a real regulator. In the first, he earned only in certain regions. In
the second, in its present form the mechanism of acquisition of private land
ownership in this category is not focused on the development of the
agricultural sector. For the overwhelming majority of agricultural land
acquisition sizes were unfeasible or unprofitable. Insignificance of the difference between the discounted redemption value
and the normal and the restrictions that accompany the acquisition of the
discount made it not particularly attractive. At the same governorates
showed no interest in selling discounted land. Land market, earned mainly in
suburban areas of the Southern Region and the city of Astana. This indicates
that the lands acquired by a private property largely for the purpose of
commercial agricultural production. Acquisition of land is often misused, if
any, remain without engaging in economic circulation. Efforts are being made to change the purpose of land using different
schemes of their withdrawal from the agricultural land. In particular,
land transferred into the reserve land as unused, and then provide the other
categorical affiliation with any other end use. That is, under the guise of
unused land included in the reserve lands, there are already provided for any
other purpose. The Law allowed the executive bodies and officials to create a
very profitable corruption scheme.
Property interest is a substance that
characterizes the essence of the land relations. The law of Kazakhstan contains
enough concretized variants acquisition of agricultural land in private
ownership: the acquisition of reduced regulatory costs, with the use of installment
payment to the auction acquisitions at market value. The most important set of issues associated with land sales market
remained outstanding as at the level of granule cells, and at the level of
secondary legislation.
The given legal situation increases the likelihood of
corruption in the process of disposition and privatization of agricultural land
fund. Under the guise of protection and realization of public interests may be
inconsistent in guaranteeing the full rights and property interests of the owner
of the land. It reveals the social and
unjust, and therefore methodologically flawed regulatory design: «Ensuring the
public interest through the infringement of private interest». Forgotten that
any public interest ultimately serves the embodiment of private interest. The
law viewed the lack of consistency to the principles of private property. The
law of Kazakhstan on the one hand, substantially expanded the rights of private
property, on the other - much weakened guarantee its effective functioning and
protection. "Truncated" structure of private ownership dilutes the
essence of property - the possibility of disposal of the subject property. It
is not consistent with the right to fair compensation.
Consistent application of market mechanisms, with the
exception of constraints of a social orientation should be identified as
structural basis of, modification and termination of private property rights
and private land.
The project of plan land regulation should be based on
decision methodological problem of detection and fixing of the conceptual and
theoretical law and legal interaction model methods of legal regulation. Based
on the general laws of legal mediation of market relations is acceptable the
following approach: a method of a private law regulation in the sphere of land
relations must be present to the extent to which it does not infringe on the
fundamentals of the land system, the public interests of the subjects of land
relations, the method of public law regulation may mediate land relationship to
the extent that does not violate the essence of a private mediation of land
relations, its market, property-oriented. Organizational conditions for the
conversion of the legal possibility into reality right.
At the present stage of development of land law have
neither the one nor the other. The current land law avoids the consistent
application of a private method of regulation. Simultaneously, there is no
meaningful public regulation. Many of the contradictions, the reasons for the
reduction of social, regulatory, efficiency of land laws, are connected with
the problem unresolved.
Under the current legislation, was shown statutory
definition of prices prevailed not socio-economic and purely administrative
approach. Meanwhile, the task of the legislator should be to establish a
flexible, differentiated system of prices and conditions, taking into account
all relevant factors. The system of payments for the land needs to be reviewed
through the issue of implementation of land rights. Based on the analysis of
the principles and general rules on payment for land is proposed: introduce
only auction procedure for selling land in high demand; the norm on the free
provision of land for private housing to the social, your address, with
simultaneous determination of the application, i.e. clearly defined mechanism
for implementation; provide a one-time free of charge to citizens of Kazakhstan
of land for agricultural production within certain norms of the special land
fund; revise the size of concessional land prices to the downside, the legal
regime and the conditions for admission to a market turnover of land provided
at a discounted price (or ) in installments; installed in the system and amount
of payments equal opportunities for owners and tenants of land; the sale of the
tenant leased them land in the property, take into account the amount of its
payments for the acquisition of right of lease and sale of lease rights; with
respect to aliens provide higher rates of payment for land (rent); increase the
compensation payments for the purpose of land by reviewing the system of
accumulation and disbursement of payments for land. The concept of «land»
directly related quantitative-qualitative and functional characteristics of the
land trust as an object of rights, the spatial (horizontal and vertical), the
limits of land rights. Anglo-Saxon and Continental systems of law in
determining the scope of rights and the limits of their action in relation to
land use fundamentally different approaches: the first of them the right to
mineral resources is inextricably linked to land rights is an integral part of
the second-these rights are separated from each other. The design of the land
in Kazakhstan's legislation is based on the second approach. Under this
approach, art. 42 LK limits of rights to land limit the surface soil layer.
Statutory definitions of land (art.12 LK), the spatial limits of the land
rights (art.42 LK) does not reflect the actual, cost due to the limits of the
rights to the land. The vertical limits of distribution rights to land are
limited to surface soil layer, which is not universal, inherent in all land
property. Therefore, when such design problems: the delimitation of land boundaries
of the subsoil, the division of land and mineral resources, and determining the
spatial limits of the rights to the land. Should enshrine the principle of the
spatial extent of land rights on the purpose and type of activity on the land.
The land owner should be allocated just enough space limits, as necessary to
ensure the functionality of the land, in accordance with its purpose and
intended it concrete form of activity.
As part of the managerial aspects of land tenure is
required: strengthening the role of public administration with a simultaneous
change in the traditional and the attraction of new forms and methods of
exposure, clear distinction between the spheres, areas of private and public
forms and methods of streamlining land tenure, and achieving a functional
balance between interaction of structures of governance. They are focused on
the implementation of functionally-oriented, social purpose of state
regulation, organizational and structural areas of implementation to ensure
land rights, which viewed the phenomenon of "structural split"
functions. Their decision will: remove the contradictions and optimal
distribution of functions and powers between the administrative structures, to
review a conceptual legal status, competence Agency for Land Management. The
emerging practice of land relations shows the need to strengthen the functions
of representative and executive bodies of lower rank. In terms of prevention of
corruption and rule of law in the land sector and the actual formation of the
institutional and regulatory support activities of public institutions, including
local authorities. No less important is the formation of independent local
systems of control and inspection of structures with appropriate personnel and
logistics, covering all areas and levels of land relations.
In general, further work is needed to further improve
the system of land legislation of Kazakhstan. The changes are required additions to the LC and other acts or the adoption of special
regulations: the structure and certain categories of land resources, on the
auction form of granting land rights, on turnover of agricultural lands, the
preservation and reproduction of soil, holding land security , remediation, on
the order, grounds and the changing purpose of land on the initiative of
property owners and land users, to ensure full compensation, including lost
profit and moral damage to the land sector, to differentiate the limits of land
rights, their legal regimes, depending on the functional-earmarked land and its
relations with other objects, to improve the system and guarantee the protection
of property rights to land: property rights and other obligations of the state,
accompanying the process of reducing or eliminating land rights, safeguards and
remedies of land rights, the right to re-acquire land rights, mandatory pre-Law
confirmation of the inevitability of loss or
termination of land rights in the public interest; account the will of the
owners and land users in the event of termination or loss of their land rights
in the public interest, to improve the structural composition of land offenses
and the system of legal sanctions, taking into account market realities, to
simplify procedures for the implementation of land rights.
References
1.
Constitution of the Republic of Kazakhstan of August 30, 1995, as
amended. / IS PARAGRAPH.
2.
Land Code of
the Republic of Kazakhstan ¹442-II of June 20, 2003. / IS
PARAGRAPH.
3.
The concept of legal policy of the Republic of Kazakhstan: Approved by
the Decree of the President of the Republic of Kazakhstan from September 20,
2002. ¹ 949 // SAPP. - 2002. - ¹ 31.
4.
State Agricultural and Food Program of the
Republic of Kazakhstan for 2003-2005: Approved by the Decree of the President
of the Republic of Kazakhstan from June 5, 2002. ¹ 889. - Astana, 2002. / IS
PARAGRAPH.