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RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of August 3, 1999 No. 17/2

About compliance of the Constitution of the Law of the Republic of Kazakhstan "About compulsory liability insurance of the employer for damnification of life and to health of the worker, injured accident or occupational disease in case of in case of execution of labor (office) obligations"

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Kim Yu. A., members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A. E., Kotova A. K. and 2) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan considered Shopin V. D. based on the subitem in open session with participation of the representative of the subject of the address - the main consultant of State and legal department of Administration of the President of the Republic of Kazakhstan Alzhanov K. K., and deputies of the Majilis and Senate of Parliament of the Republic of Kazakhstan of Amirzhanova A. M. and Beloglazova A. V., the address of the President of the Republic of Kazakhstan about compliance of the Constitution of the Republic of Kazakhstan of the Law of the Republic of Kazakhstan "About compulsory liability insurance of the employer for damnification of life and to health of the worker, injured accident or occupational disease in case of execution of labor (office) obligations".

Having heard the speaker - the Member of the Constitutional Council Kotov A. K., performances of participants of meeting and having studied the available materials, the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan the address of the President of the Republic of Kazakhstan about compliance of the Constitution of the Republic of Kazakhstan of the Law of the Republic of Kazakhstan "About compulsory liability insurance of the employer for damnification of life and to health of the worker, injured accident or occupational disease in case of execution of labor (office) obligations", accepted by Parliament of the Republic of Kazakhstan on July 8, 1999 arrived on July 26, 1999.

The analysis of the specified Law the Constitutional Council revealed that its separate provisions disperse from requirements of regulations of the Constitution of the Republic of Kazakhstan in the following.

So, in the subitem 6) of Item 1 of article 9 of the Law of the Republic of Kazakhstan "About compulsory liability insurance of the employer for damnification of life and to health of the worker, injured accident or occupational disease in case of execution of labor (office) obligations" it is determined that the Government of the Republic of Kazakhstan determines "the refusal bases in payment of insurance indemnity".

According to the subitem 1) of Item 3 of article 61 of the Constitution of regulation, determining legal personality of physical persons and legal entities, obligations and responsibility of physical persons and legal entities, shall be published by Parliament in the form of the laws. Sense of establishment of the bases of refusal in payment of insurance indemnity is the normative definition of borders of the insurer liability and fixing of limits of legal opportunities of the worker who was injured in case of execution of labor (office) obligations to request insurance payments. Thereby the fundamental principles and regulations governing the public relations in this type of compulsory insurance are established. Granting this right to the Government, the subitem 6) of Item 1 of article 9 of the considered Law illegally gives to executive authorities the authority limiting legal personality of physical persons with bylaws.

Inadmissibility in the Republic of Kazakhstan restrictions or deprivations of legal personality of physical persons in the civil relations in general, and in the relations on insurance, in particular, differently as in the cases and procedure provided by legal acts it is also established in the General clause and Article 839 Special parts of the Civil code of the Republic of Kazakhstan.

Of May 6, 1999 "About the Government of the Republic of Kazakhstan" in the subitem 9) of Article 9 competence of the Government of the Republic regarding determination of system and conditions of social insurance, but not the solution of questions of establishment of the bases of refusal is fixed in payment of insurance indemnity by the constitutional law of the Republic of Kazakhstan.

Thus, the subitem 6) Item 1 of article 9 of the Law "About Compulsory Liability Insurance of the Employer for Damnification of Life and to Health of the Worker, Injured Accident or Occupational Disease in case of Execution of Labour (Office) Obligations" allocating the Government of the Republic of Kazakhstan with the right of establishment of the bases of refusal in payment of insurance indemnity to the workers injured with accident or occupational disease in case of execution of labor (office) obligations is unconstitutional as contradicts subitem provisions 1) of Item 3 of article 61 of the Constitution of the Republic of Kazakhstan and randomly expands subitem regulation 9) of article 9 of the Constitutional law of the Republic of Kazakhstan "About the Government of the Republic of Kazakhstan".

Based on stated and being guided by the subitem 2) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan, the Constitutional Council of the Republic of Kazakhstan decides:

1. Recognize the Law of the Republic of Kazakhstan "About compulsory liability insurance of the employer for damnification of life and to health of the worker, injured accident or occupational disease in case of execution of labor (office) obligations" unconstitutional regarding subitem provision 6) of Item 1 of Article 9.

With respect thereto the Law of the Republic of Kazakhstan accompanying it "About introduction of amendments to the Law of the Republic of Kazakhstan "About labor protection", providing its enforcement along with enforcement of the Law of the Republic of Kazakhstan "About compulsory liability insurance of the employer for damnification of life and to health of the worker, injured accident or occupational disease in case of execution of labor (office) obligations", that is since January 1, 2000 is not subject to signing.

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