ON THE FAULT OF LEGAL REGULATION OF THE LEGAL EXPERTISE OF NORMATIVE LEGAL ACTS AND THEIR LEGAL CONSEQUENCES (On the example of the Board Decree of the Agency of the Republic of Kazakhstan for the Regulation and Development of the Financial Market No. 1

Authors

  • Ayvar Zhakiyevich Kalmagambetov
  • Gulmira Nuradinovna Kuzembayeva

DOI:

https://doi.org/10.52026/2788-5291_2021_64_1_285

Keywords:

Board decree, property that does not belong to the bank, liquidation estate, legal expertise, approval of draft of normative legal acts, compliance of the normative legal acts with the Constitution, compliance with the legislation of the Republic of Kazakhstan

Abstract

The article outlines the faults and contradictions of legal regulation during the legal expertise  of normative legal acts on example of the Board decree of the Agency of the Republic of Kazakhstan for the Regulation and Development of the Financial Market.

In the decree, registered on 2 December of 2020, there is an innovation, according to which the assets of the banks in liquidation include "...property that does not belong to the bank in liquidation, but is listed in the accounting records..." This change in the definition of the term "bank assets" infringes on the constitutional rights to property and interests of individuals and legal entities that have opened bank accounts in second-tier banks. This was the result of not conducting a proper legal expertise for the compliance of this Decree with the current legislation of the Republic of Kazakhstan. According to the second part of clause 1 of Article 44 of the Law on Legal Acts, state registration of a normative legal act includes a legal expertise by the judiciary for the compliance of a normative legal act with the legislation of the Republic of Kazakhstan. However, paragraph 6 of Article 18 of the Law on Legal Acts excludes the conduct of a legal expertise  by the Ministry of Justice of the Republic of Kazakhstan (hereinafter-MOJ) of the Board Decree of the Agency of the Republic of Kazakhstan for the Regulation and Development of the Financial Market, and clause 36 of the Decree of the Government of the Republic of Kazakhstan (approved by the Decree of the Government of the Republic of Kazakhstan dated December 10, 2002 No. 1300) obliges state bodies to coordinate with the Ministry of Justice draft decrees for their compliance with the Constitution, legislative acts, acts of the President, Government and Prime Minister of the Republic of Kazakhstan.

The authors of the article note the existence of a definition of the term «bank assets» only in the Rules for the implementation of liquidation and requirements for the work of liquidation commissions of forcibly being liquidated banks, approved by the Agency of the Republic of Kazakhstan for the Regulation and Development of the Financial Market, and its absence in the Law of the Republic of Kazakhstan «On Banks and Banking Activities».

In conclusion, the authors suggest:

envisage in the Law on Legal Acts a mechanism for repealing illegally registered normative legal acts;

to exclude from the Rules the provision on the including in the assets of the bank under liquidation - property that does not belong to this bank.

in order to protect the rights of individuals and legal entities who have opened bank accounts, in the Law of the Republic of Kazakhstan «On Banks and Banking Activities» to fix a provision that excludes the possibility of including their cash on bank accounts in the assets of a bank under liquidation, as the obligation of temporary administration and liquidation commissions of the bank under liquidation to return cash on bank accounts at the first request of individuals and legal entities.

 

 

Published

30.03.2021

How to Cite

Kalmagambetov А. Ж., & Kuzembayeva Г. Н. (2021). ON THE FAULT OF LEGAL REGULATION OF THE LEGAL EXPERTISE OF NORMATIVE LEGAL ACTS AND THEIR LEGAL CONSEQUENCES (On the example of the Board Decree of the Agency of the Republic of Kazakhstan for the Regulation and Development of the Financial Market No. 1. Scientific and Legal Journal «Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan», 1(64). https://doi.org/10.52026/2788-5291_2021_64_1_285