LEGAL NATURE OF THE PROPERTY TRUST WITHIN THE CIVIL CODE OF THE REPUBLIC OF KAZAKHSTAN

Abstract

The article attempts to analyze the institution of property trust in order to identify its legal nature. Considering the fact that all property relations in the theory of civil law divided into proprietary and contractual, the analysis, aimed at determining the fitness of relationships on property trust to proprietary or contract law. In order to achieve this aim, the author analyzes the norms of the institute of property trust, enshrined in the Civil Code of the Republic of Kazakhstan, through the prism of proprietary law features. The analysis is performed by considering such characteristics of property law as: an object of property law is always the specific thing; following of a thing; absolute character of property law; of property law is prescribed by law; of property law encompasses the powers of possession and / or use and / or administration.

As a result of the analysis the author concludes that the institution of property trust is characterized only by certain elements of property law this fact reveals its contractual origin. The author admits the possibility of a mixed character of this institution. However, it notes, that such a position is controversial.

In frames of the analysis, the author draws attention to the lack of consensus not only in the matter of the legal nature of the property trust, but also in the approach to the determination of the proprietary law attributes and their meaning.

This article was prepared as a part of the fundamental research of the Institute of Legislation of the Republic of Kazakhstan on the theme "Actual problems and improvement of contractual obligations in the civil legislation of the Republic of Kazakhstan: legal regulation, theory and practice"