Anatomy of the 1994 Civil Codes of Russia and Kazakstan: A biopsy of the economic constitutions of two post-Soviet republics

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1413-1509

  Osakwe, Christopher ^a,b,c,d,e,f  

^a TULANE UNIVERSITY   (United States)

^b Russian Federal Parliament ^*  (Russian Federation)

^c Off Pres of the Rep of Kyrgyzstan   (Kyrgyzstan)

^d Cabinet Ministers Rep of Kazakstan

^e MOSCOW STATE UNIVERSITY   (Russian Federation)

^f UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

Author keywords

[No Author keywords available]

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EID: 11844254536     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (101)

1. GRAZHDANSKII KODEKS RK [GK RK]: Obshchaya Chast [hereinafter Civil Code of Kazakstan: First Part]. Adopted by the Supreme Soviet of the Republic of Kazakstan on December 27, 1994; signed into law by the President of the Republic of Kazakstan on December 27, 1994.
2. GRAZHDANSKII KODEKS RF [GK RF]: Chast Pervaya [hereinafter Russian Civil Code: Part One of 1994]. This first part of the Civil Code of the Russian Federation was adopted by the State Duma on October 21, 1994; it was signed into law by President Boris Yeltsin on November 30, 1994. For the most part, it went into effect on January 1, 1995.
3. See my discussion of the influence of the Model Civil Code for the CIS Republics on the drafters of the 1994 Russian Civil Code, infra Part III.A.
4. GRAZHDANSKII KODEKS RF: Chast Vtoraya [Rusian Civil Code: Part Two] [hereinafter GK RF]. This second part of the Civil Code of the Russian Federation was adopted by the State Duma on December 22, 1995; signed into law by President Boris Yeltsin on January 26, 1996.
5. The contents of the constituent parts of the Russian Civil Code are discussed infra Part IV.
6. For the results of the writer's survey of Russian public opinion, see infra Part IV.B.
7. For a general discussion of the principles of Soviet-era Russian tort law, see Christopher Osakwe, An Examination of the Modern Soviet Law of Torts, 54 TUL. L. REV. 1 (1979).
8. GK RF art. 213.
9. Id. art. 213(2).
10. The detailed regulation of private property rights under the Russian Civil Code is examined infra Part VI.G.
11. GK RF art. 18(1).
12. Id. art. 23(1).
13. Id. art. 49(1).
14. For a detailed discussion of the public contract exceptions to the freedom of contract, see infra Part VI.H.
15. For a more detailed discussion of the new law of governmental tort liability under the 1994 Civil Codes of Russia and Kazakstan, see infra Part VI.F.
16. KONSTITUTSIIA RF [Russian Constitution] [hereinafter KONST RF]. The Russian Constitution was adopted at a national referendum on December 12, 1993. The creative process of blending all of these disparate sources into one melange parfait is examined infra Part VA.
17. A completely revamped version of the Fundamental Principles of Civil Legisla-tion of the USSR and the Union Republics [hereinafter FPCivL] was adopted by the federal parliament of the USSR on May 31, 1991. See 26 Vedomosti SSSR, item 733 (1991). On July 14, 1992 the Supreme Soviet of the Russian Federation adopted a decree stipulating that until a new Civil Code of the Russian Federation is adopted and goes into force, the FPCivL of 1991 shall be applicable in the territory of the Russian Federation with the exception of those provisions which establish the jurisdiction of the USSR in civil law matters in the Russian Federation and those provisions which conflict with the Russian Constitution and other laws of the Russian Federation promulgated after June 12, 1990. See Postanovlenie [Decree] of the Supreme Soviet of the Russian Federation No. 3301-1, in 30 Vedomosti RSFR, item 1800 (1992). This decree stipulated that provisions of the Russian Civil Code of 1964 shall continue to have effect in the territory of the Russian Federation to the extent that they do not contradict legislations of the Russian Federation promulgated after June 12, 1990.
18. Model Civil Code (Part One) for the CIS republics was adopted at the Fifth Plenary Session of the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States on October 29,1994 as a "recommended legislative act of the CIS." Model Civil Code (Part Two) for the CIS republics was adopted at the Sixth Plenary Session of the Interparliamentary Assembly of the Member States of the CIS on May 13, 1995.
19. A detailed discussion of the Russian Civil Code drafting process may be found infra Part V.B
20. The 1964 Civil Code of the Russian Soviet Federative Socialist Republic (RSFSR) was promulgated by a law of the RFSR on June 11, 1964. See 24 Vedomosti RFSR, item 406 (1964).
21. See Article 13 of the Law of the Russian Federation of November 30, 1994, No. 52-FZ "On the Entry into Force of First Part of the Civil Code of the Russian Federation."
22. See W.E. BUTLER & MARYANN E. GASHI-BUTLER, INTRODUCTION TO THE CIVIL CODE OF THE RUSSIAN FEDERATION (W.E. Butler trans., 1997).
23. GK RF art. 2(1).
24. The intellectual property law chapter in Part Three (Draft) of the new Russian Civil Code builds on the existing Russian legislation on intellectual property. For a review of the existing intellectual property law of the Russian Federation, see Christopher Osakwe, The Greening of Russian Law of Intellectual Property: Translations and an Introductory Commentary, 32 I.L.M. 1614 (1993).
25. For my discussion of the absence of legal culture in Russia and Kazakstan, see infra Part VII.A.
26. For my discussion of this difference in the styles of the Russian and Kazak civil codes, see infra Part VII.B.
27. The relationship between the Civil Code and international law is discussed infra this Part.
28. Unless otherwise indicated, all references in parenthesis in the sections below are reference to their respective civil codes.
29. KONST RF 1993.
30. GK RF art. 3(2).
31. Id.
32. Id. art. 3(6).
33. Id. art. 3(4).
34. Id. art. 242(1).
35. Id. art. 1(3).
36. For an examination of pre-1994 Russian law of enterprise organization, see Christopher Osakwe, Russian Law of Enterprise Organization: Theory and Practice, 3 RUSSIAN OIL & GAS GUIDE 2 (1994).
37. For additional discussion of this element of Article 49 of the Russian Civil Code, see O. IU. SHILOKHVOST ET AL., GRAZHDANSKOE ZAKONODATELSTVO ROSSII [THE CIVIL LEGISLATION OF RUSSIA] 27 (1996).
38. GK RF art. 105(1).
39. For a critical analysis of the law of enterprise organization under the Kazak Civil Code of 1994, see Christopher Osakwe, Law of Enterprise Organization Under the 1994 Civil Code of the Republic of Kazakstan: Commentary, Analysis and Critique, RUSSIAN OIL & GAS GUIDE, July 1995, at 3.
40. See supra Part VI.D(1).
41. Id.
42. GK RF art 58 (4).
43. Id. art. 58(3).
44. Id. art. 72(4).
45. See generally SHILOKHVOST, supra note 37, at 38-40 (1996).
46. GK RF art. 329(2).
47. Id. art. 329(3).
48. KOMMENTARII K GRAZHDANSKOMY KODEKSU ROSSIISKOI FEDERATSII: CHASTI PERVOI [Commentaries on the Civil Code of the Russian Federation: Part One. 344 (1997)], (O.N. Sadikov ed., 1997) [hereinafter Sadikov, COMMENTARIES].
49. See id.
50. GK RF 334(1).
51. Id.
52. See Sadikov, COMMENTARIES supra note 48, at 376.
53. GRAZHDANSKII KODEKS ROSSIISKOI FEDERASKI: CHAST PERVAYA-NAUCHNO-PRAKTICHECKII KOMMENTARII [CIVIL CODE OF THE RUSSIAN FEDERATION: FIRST PART-SCIENTIFIC-PRACTICAL COMMENTARIES] 580 (T.E. Abova et al., eds. 1996) [herein-after Abova et al., COMMENTARIES].
54. See Sadikov COMMENTARIES, supra note 48, at 376.
55. For a synopsis of the modern Kazak law of mortgages under the 1994 Kazak Civil Code, see M.K. SULEIMENOV & E.B. OSIPOV, ZALOGOVOE PRAVO [LAW OF MORTGAGES] (Almaty 1997).
56. GK RF art. 1067.
57. See UK RF arts. 37, 39.
58. GK RF art. 1069.
59. GK RF art. 151(2).
60. For an insightful analysis of the formulas used by Russian courts to calculate compensation for moral injury, see A.M. ERDELEVSKII, KOMPENSATSIIA MORAL'NOGO VREDA v ROSSII I ZA RUBEZHOM [COMPENSATION OF MORAL INJURY IN RUSSIA AND ABROAD] (1997).
61. KONST. RF (1993).
62. See generally Abova et. al, COMMENTARIES, supra note 53, at 269-74; Sadikov, COMMENTARIES, supra note 48, at 198-99.
63. For a synopsis of the core principles of the modern Russian law of property under the 1994 Russian Civil Code, see O. IU. SHILOKHVOST ET AL., GRAZHDANSKOE ZAKONODATEL'STVO ROSSII [THE CIVIL LEGISLATION OF RUSSIA] 33-37 (1996).
64. For a discussion of the takings clause, see supra Part VI.B.
65. GK RF art. 212(4).
66. Id. chap. 17.
67. Id. art. 214(2).
68. Id. art. 129(1).
69. Examples of a unilateral obligation are a "Public Promise of an Award" in Chapter 56 and a "Public Competition" in Chapter 57 of the Russian Civil Code.
70. The provisions of the Russian Civil Code covering nominate contract of gambling are located in Chapter 58.
71. See GK RF art. 153.
72. GK RF art. 314(1).
73. See Sadikov, COMMENTARIES, supra note 48, at 400-01.
74. GK RF art. 420.
75. Id. art. 421(1).
76. Id. art. 420(1).
77. Id. art. 426(1).
78. Id.
79. Id. art. 426(2).
80. Id. art. 426(3).
81. Id. art. 426(4).
82. Id. art. 423(1).
83. Id. art. 423(2).
84. Id. art. 423(3).
85. Id. art. 432(1).
86. Id. art. 432(2).
87. Id. art. 436.
88. For a synopsis of the modern Kazak law of contract under the 1994 Kazak Civil Code, see IU.G. BASIN, SDELKI [Transactions] (1996).
89. See discussion supra Part III.A.
90. See discussion supra Part VI.A.
91. See discussion supra Part VI.D.
92. For this writer's criticism of the provisions of the 1994 Kazak Civil Code dealing with the law of enterprise organization, see Osakwe, supra note 39, at 3.
93. For a discussion of the supremacy clause in the Russian Civil Code of 1994, see supra Part VI.A.
94. For a discussion of the interstate commerce clause in the Russian Civil Code of 1994, see supra Part VI.C.
95. For a discussion of the equal protection clause in the Russian Civil Code of 1994, see supra Part II.D.
96. For a discussion of the takings clause in the Russian Civil Code, see supra Part VI.B.
97. The delegation of powers doctrine is embodied in Article 3 of the Russian Civil Code of 1994. According to the provision of Article 3(2) of the Russian Civil Code, civil law relations shall be regulated primarily by statute, i.e., by the Civil Code as well as by other federal laws (statutes enacted by the federal parliament) that are consistent with the Civil Code. However, Article 3(3) delegates to the President of the Russian Federation the power to regulate civil law relations as long as any decrees issued by the President on such matters are consistent with the Civil Code and other federal laws dealing with the same subject matter. Additionally, Article 3(4) delegates to other executive branch agencies the power to regulate civil law relations as long as the regulations issued by such agencies are consistent with the Civil Code, other federal laws, and the decrees of the President dealing with the same subject matter. In other words, under the arrangement set forth in Article 3 of the Russian Civil Code, the power to regulate civil law relations in the Russian Federation is vested in the Russian federal parliament, which exercises such authority through the enactment of the Civil Code. By virtue of delegation from the Russian federal parliament, the power to regulate civil law relations is also granted to the President of the Russian Federation and to the other executive agencies of the federal government, with the caveat that the exercise of such delegated powers by the President and the regulations promulgated by the other federal executive agencies are consistent with the Civil Code and other statutes that regulate civil law relations.
98. The clause on the allocation of powers between the federal and state Governments is embodied in Article 3(1) of the Russian Civil Code. Citing the Constitution of the Russian Federation, Article 3(1) of the Russian Civil Code states that the regulation of civil law relations shall fall within the exclusive jurisdiction of the federal Government. For a more detailed discussion of this principle of the Russian Civil Code, see supra Part VI.A.
99. U.S. CONST, amend. X.
100. A comparison of the laws of enterprise organization under the post-Soviet Civil Codes of Russia, Kazakstan, and Kyrgystan may be found in Christopher Osakwe, Enterprise Organization Under the Civil Codes of Russia, Kazakstan and Kyrgystan: A Biopsy of Commercial Law Reforms, 45 INT'L PRACTITIONER'S NOTEBOOK 58-59.
101. The semantic differences between the laws of enterprise organization under the Russian and Kazak Civil Codes are explored supra Part VI.D.